May 2011 Archives

Kent and I blogged about the close race for a Wisconsin Supreme Court seat. The final election board tally, reached weeks ago, had the more conservative candidate, Justice David Prosser, defeating challenger JoAnne Kloppenburg by a little more than 7300 votes. Ms. Kloppenburg was entitled to a recount paid for by the state. It was completed several days ago, and showed her losing by 7006 votes.

Ms. Kloppenburg conceded today. The election was thought to be significant because, among other reasons, the state Supreme Court may well get the final say on Gov. Scott Walker's controversial reforms affecting the collective bargaining rights of state employees. The election was also widely seen as a referendum on those reforms and, more broadly, on the Republican wave that swept Walker to victory last November.

I have sometimes tried to point out the unwholesome symbiosis of (a) the welfare state and (b) our indulgent view of crime and criminals. Both depend on an assessment of human nature in which individual responsibility is devalued, and the the state is seen as responsible for how people live. As expressed in criminal defense, this means that the defendant isn't really culpable. The state is culpable, because it failed to provide him with a good enough Head Start, or a job (regardless of his lack of interest in having one), or......well, you name it.

The following almost unbelievable story from Powerline shows that, when taken to its logical conclusion, conceptualizing citizens as infants warps beyond recognition not just the meme of the defense, but the fearsome power of prosecution.

Enzo Boschi, the president of Italy's National Institute of Geophysics and Volcanology (INGV), will face trial along with six other scientists and technicians, after failing to predict the future and the impending disaster.

Earthquakes are, of course, nearly impossible to predict, seismologists say. In fact, according to the website for the USGS, no major quake has ever been predicted successfully.

The...story quotes a spokesman for the U.S. Geological Survey who says that Italy's criminal prosecution "has a medieval flavor to it." Actually, you would have to go back to a more primitive era to recapture the condition of childish dependence that this story reveals. Many Europeans, and a growing number of Americans, have abandoned any pretense of looking after themselves and believe that it is the duty of the authorities--whoever they may be in a particular instance--to protect them from all harm, if not all inconvenience.

The defense bar is forever riding its high horse about its devotion to compassion, while prosecutors continue their cold, callous and mean-spirited ways.

But every now and again the mask slips, as it did in some defense lawyer comments to the press about a client who is facing execution.

Courtesy of a tip from reader federalist, here's the story (emphasis added):

HUNTSVILLE -- With his back turned while he wrote on a piece of paper, security guard Brian Williams never saw Gayland Bradford come up behind him at a Dallas grocery store.

As seen on a surveillance video, Bradford pulls a pistol from his waistband, says nothing and shoots the 29-year-old Williams in the back. He turns the gun toward a store clerk, who runs behind some displays, fires three more times at Williams, then yells for a companion, who joins him in trying to take cash from a register. They left with $7 taken from Williams, who died about an hour later. It was his second day on the job.

*************************

Edwin King Jr., one of Bradford's trial lawyers, recalled the video as "very disturbing, and when the jurors saw it most of them began to cry."

His co-counsel, Paul Brauchle, said the tape showing Williams in prolonged agony was devastating to the defense trying to keep Bradford off death row.

"The jury gets to sit there and listen to the guy moan and groan and agonize," Brauchle said. "A 4-year-old kid could have gotten death." ###

Well, gads, Mr. Brauchle, I guess we should apologize that your client was inconvenienced by the fact that the jury had to "listen to the guy moan and groan." That must really have been annoying.

Ask most folks what a psychopath is and they will answer along the lines of "cold blooded" and "wicked to the core." Movies like Silence of the Lambs have firmly embedded the idea of the psychopath as a highly dangerous and unrepentant offender within our cultural consciousness. But as a scientific construct, what is psychopathy? And should psychopaths be treated differently by the law?

The concept of psychopathy goes back to the writings of psychiatrist J.C. Prichard and his colleagues of the moral psychiatry movement during the early 19th century. The idea that some people are fundamentally mentally unsound in matters related to moral decision making despite no other signs of mental illness is nothing new under the sun. But the idea of psychopathy as a mental disorder has made a comeback of sorts, due largely to the work of psychologists such as Robert Hare and his contemporaries. And it should be of no surprise that given the strong penchant of psychopaths for antisocial behavior, psychopathy is frequently implicated in various criminal and civil proceedings where deprivation of liberty is at stake.

But are psychopaths so different that they are not responsible? That idea has gained ground in recent years as a number of prominent legal scholars and moral philosophers have weighed in on the issue. One notable view suggests that the answer to that question is "yes" insofar as it relates to severe cases of psychopathy. Other views also take the position that substantive criminal law should seriously consider extending excuse to psychopaths due to their deficits in emotional processing.

In a forthcoming paper in the journal Psychology, Public Policy, and Law, a colleague and I contest this view and suggest that the law should continue to exclude psychopaths from considerations of excuse. The issue is seminal, as some excuse proponents have begun to employ the highly seductive images of neuroscience to promote their view.

California Senate to Vote on Counties Opting Out of Secure Communities: Michael J. Mishak of the Los Angeles Times reports
a bill that would allow counties in California to opt out of the
federal Secure Communities program passed the California Assembly on a
party-line vote and is now headed to the Senate. Under the program,
launched in 2008, fingerprints of those arrested and booked into local
jails are cross-checked with the FBI's criminal database and sent to ICE
for screening. The system is intended to identify and deport illegal
immigrants convicted of serious crimes. Governor Jerry Brown supported
Secure Communities when he was California's Attorney General, and last
year denied a request by San Francisco Sheriff Michael Hennessey to opt out of the program. But the Associated Press reports
the sheriff's new plan will begin in San Francisco tomorrow, where
illegal immigrants arrested for petty crimes will not be held in jail
longer than necessary (the time it takes ICE to check their status
through the fingerprinting monitoring program), even if federal agents
may want them detained for possible deportation. Instead, those eligible
for release will be cited to appear in court. San Francisco mayor Ed
Lee says his office has reached out to federal authorities to determine
if the policy conflicts with federal law.

New Hampshire Votes to Expand Death Penalty: The Associated Press reports
the New Hampshire Senate will vote tomorrow on an amended bill,
supported by Governor John Lynch, that would expand the state's death
penalty to include killings committed during burglaries of occupied
buildings. The bill, sponsored by House Speaker William O'Brien, is
named after Kimberly Cates, who in 2009 was killed in her bed by a
machete and knife attack during a home invasion.

Nevada Bill Allows Inmates to Apply for Parole Earlier: Cy Ryan of the Las Vegas Sun reports
the Nevada Senate in an 11-10 vote approved Assembly Bill 136, which
would allow convicted felons who complete education courses to apply
earlier for parole. The bill will not allow educational credits to be
applied to prisoners convicted of a sex offense, a person who used a gun
in a crime, or habitual prisoners. The key vote came from Senator John
Lee (D), who initially voted to defeat the bill but changed his mind
hours later.

ACLU Wants Prisoners in a Detention Center in S.C. to be Allowed to Watch Porn: KABC-TV Los Angeles, CA reports
the ACLU is pushing for inmate access to porn at a detention facility
in Moncks Corner, South Carolina, after reports claimed that prisoners
were only being allowed to read the Bible. Prison officials dispute the
facts in the report, and also believe that giving inmates porn will
lead to more assaults and eventually create a dangerous environment. A
preliminary hearing next is set for month.New Zealand--Want Prisoners to Stop Smoking? Give Them a Carrot: Paul Chapman of The Telegraph (UK) reports
in preparation for a smoke-free prison policy starting July 1 in New
Zealand prisons, officials are reportedly to distribute carrot
slices to inmates. Currently 70% of New Zealand's prisoners smoke.
Under the new policy, all tobacco will be contraband. Judith Collins,
the Correctional Minister, stated, "This is a prison. It's not
home." One city mayor suggested that this policy may itself
significantly discourage future crime.

The drumbeat from the Left is that American society is too punitive, fails to give second chances, and is in a rush to "marginalize" whomever it can get its hands on for minor offenses.

The truth is that we snooze past unmistakeable warning signs and have a shockingly blase' attitude toward repeated misbehavior.

This was perhaps most graphically illustrated in the horrible Petit triple murder. The killers had been convicted time after time, but were still out on the street. An unsuspecting family paid the price, while the Left, without a trace of embarrassment or reflection, continued to preach about the lack of second chances.

The blase' attitude was illustrated again today in a less horrible way -- but only because almost anything would be less horrible.

A tour bus driving up I-95 north of Richmond was involved in an accident that killed four passengers. Driver fatigue was part of the cause. Not that this should have come as a surprise; the tour company had been involved in four crashes in the last two years, and had been cited 46 times before for allowing fatigued drivers. That's FORTY-SIX. But nothing happened -- until today. The story is here.

When there are no consequences to criminal indifference, sooner or later it comes home to roost.

Conservatives are not the only ones having fun with all the head-scratching over crime trends that confound the Politically Correct conventional wisdom. Richard Cohen has this column in the WaPo:

"Counter to the prevailing expectation that crime would increase
during a recession," it actually dropped last year and violent crime is
now at nearly a 40-year low. So said the New York Times last week.
But what the Times did not report is precisely why it was so surprised
to learn, yet again and probably not for the last time, how the
"prevailing expectation" may be limited to people who think as did Marx
(Karl maybe, Groucho for sure) that money is the root of all evil. On
the contrary, evil is.

I pick on the Times out of tough love. The paper's evident
surprise at the falling crime rate shows a remarkable tenacity in
clinging to shopworn and disproved dogma. Crime is not committed by good
people who lose their jobs. It is committed by criminals who never had
real jobs in the first place.

In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court addressed due process limitations on a witness's identification of the defendant when there has been a suggestive identification procedure pretrial.

In United States v. Bouthot, 878 F.2d 1506 (1989), the First Circuit decided that because Biggers was about fairness at trial, not pretrial police misconduct as in, e.g., Fourth Amendment cases, it did not matter whether the suggestive pretrial identification was a product of state action.

Last October, in State v. Addison, 160 N.H. 792 (2010), the Supreme Court of New Hampshire declined to follow the First Circuit and limited Biggers to state action.

Two weeks ago, the US Supreme Court denied certiorari in Addison, but today it granted certiorari in a subsequent case following Addison. That case, as titled in the US Supreme Court, is Perry v. New Hampshire, No. 10-8974. In the state court, it was State v. Perry, 2009-0590 (Nov. 18, 2010).

Should all of this be federal constitutional law at all? A great deal of the law of evidence consists of whether we should exclude evidence of dubious reliability or just trust the jury to give it the diminished weight it deserves. Such questions are not generally constitutional. They are the subject of statutes, rules of court, and common law. The right of confrontation and the privilege against self-incrimination are, of course, constitutional because they written into the Constitution in black and white. But does the general mandate of "due process" authorize the Supreme Court to decide questions of evidence law for all 50 states, banning whatever it considers "unfair"? The high court has many times disclaimed such authority and many other times exercised it (or usurped it). It will be interesting to see how this one works out.

At BLT last Friday, David Ingram reported that Senate Democrats will push for a confirmation vote for Solicitor General nominee Donald Verrilli on June 6. I expect he will be confirmed. For executive branch nominations, the President should be allowed to name who he wants, within reason.

Today, the US Supreme Court called for the views of the Solicitor General in the Arizona capital case of Ryan v. Gonzales, No. 10-930. Gonzales's case is on federal habeas corpus. His lawyer says he is crazymentally incompetent and so the case cannot go forward. Arizona says habeas is not like a trial. A habeas petitioner's ability to assist counsel is not critical. The case can and should go forward.

This is where it gets interesting. Verrilli is part of the anti-death-penalty bar. He represented Baze in the injection case, Baze v. Rees. All his old friends want Gonzales to win. The US Department of Justice has an institutional interest in Arizona winning, because the United States has a capital punishment law of its own to enforce. Obviously, Verrilli was going to have to resolve the tension between his old crusade and his new institutional role at some point, but SCOTUS has hit him with it right out of the gate.

Near the end of today's Supreme Court orders list, as usual, are several cases in which the Court denied rehearing. The Court almost never grants rehearing, so these are usually routine. For example, California murderer Scott Pinholster wants the Court to reconsider the case it just decided April 4, and the Court said no. (Dog bites man => not news.)

But one of these orders is actually different. On April 5, the Court took the unusual step of staying an execution, that of Texas murderer Cleve Foster, while it consider his petition to reconsider the denial of review of his case about three months earlier. The order further provided, "Should the petition for rehearing be denied, this stay shall terminate automatically." So today's denial is, in effect, a go-ahead for the execution. Melody McDonald has this story in the Fort-Worth Star-Telegram.

The petition for rehearing claimed that Foster's case was like the Maples case, in which the Court granted certiorari and set the case for full briefing and argument next term. He claimed that the state was responsible for his default of his claims and that his attorney was so grossly deficient as to not be acting as his agent. What does the go-ahead in Foster portend for Maples? The Court would have to know that it is not going to make a rule so sweeping that it would give relief to Foster, as he will very like be executed months before the Court decides Maples.

Oh, and have you heard the people who obsess over "race of victim disparity" cheering the fact that Texas is about to execute a white murderer for killing a black victim?

The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case. Yet again, not a single member of the high court thought the Ninth's judgment was correct. Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again. Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000). That case involved stops with no individualized suspicion. To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding. That is absolutely preposterous. All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.

The U.S. Supreme Court today accepted for review the case of Perry v. New Hampshire, No. 10-8974. The case involves a challenge to reliability of identification. The decision of the New Hampshire Supreme Court in State v. Perry, 2009-0590, is proving a tad difficult to find. I will have more on this case later.

With these issues seemingly settled, at least for now, several others
generate enough disagreement to remain cultural flashpoints, with three
-- physician-assisted suicide, out-of-wedlock births, and abortion --
appearing to be particularly divisive, and sparking divergent reactions
by party.

We have had a very significant, generation-long decrease in the crime rate. It is now more than 40% lower than it was at its peak 20 or 25 years ago.

Why?

The release-them-now crowd will do anything to avoid telling you the truth. Recently, I saw, among the comments on SL&P, that crime is falling because prospective criminals spend their time browsing the Internet (and I suppose they do -- everyone else does).

Of course, as Kent and I have pointed out, crime has fallen for several reasons. The most important, the one that dares not speak its name (at least not in defense bar circles), isn't that hard to figure out: We have more of the people who commit crime in prison. They aren't out and about to do their thing, so less of their thing is getting done.

[W]e have little reason to ascribe the recent crime decline to jobs, the labor market or consumer sentiment. The question remains: Why is the crime rate falling?

One obvious answer is that many more people are in prison than in the past. Experts differ on the size of the effect, but I think that William Spelman and Steven Levitt have it about right in believing that greater incarceration can explain about one-quarter or more of the crime decline. Yes, many thoughtful observers think that we put too many offenders in prison for too long. For some criminals, such as low-level drug dealers and former inmates returned to prison for parole violations, that may be so. But it's true nevertheless that when prisoners are kept off the street, they can attack only one another, not you or your family.

Imprisonment's crime-reduction effect helps to explain why the burglary, car-theft and robbery rates are lower in the U.S. than in England. The difference results not from the willingness to send convicted offenders to prison, which is about the same in both countries, but in how long America keeps them behind bars. For the same offense, you will spend more time in prison here than in England. Still, prison can't be the sole reason for the recent crime drop in this country: Canada has seen roughly the same decline in crime, but its imprisonment rate has been relatively flat for at least two decades.

"We reflect on those who have gone before us. We reflect on their
service and their sacrifice on behalf of our great nation," said Brig.
Gen. Lewis A. Craparotta, who commands a Marine division in
Afghanistan's southern Helmand province. "We should also remember those
serving today who embody that same commitment of service and sacrifice.
They are committed to something greater than themselves and they muster
the physical and moral courage to accomplish extraordinary feats in
battle."

Kent gives Marc Howard the benefit of a doubt when he marks up to laziness, rather than deceit, Mr. Howard's claim that most of those to be released under Plata will be more-or-less harmless people.

I don't know Marc Howard, so Kent might be right. Still, I have my doubts. Lying about the facts has become a standard part of the Left's debate inventory, along with its first cousin, smearing the opposition.

What paricularly arouses my suspicion is the breezy contempt Howard uses in introducing his soothing "information" about the prospective releasees (emphasis added): "[Conservatives'] panic-stricken reaction conveniently ignores the fact that more prisoners are incarcerated as a result of property, drug, public order, and other crimes than of violent crimes--and presumably the former would stand to benefit from early release."

Notice that there is no such thing as legitimate concern -- only "panic-stricken reaction." Notice also that conservatives "conveniently ignore" -- guess what -- exactly the "fact" that isn't a fact at all (and that would therefore be a really good candidate to, ummmm, get ignored!) Notice further that the thousands of inmates to be released are presumably of the harmless variety -- said presumption being based on -- well, what?

Answer: willful blindness and wishful thinking. Kinda like "hope and change," to coin a phrase. Except it gets worse, because (a) presuming that thousands of release decisions will be made correctly by the very system whose years of colossal ineptitude required such decsions to start with would seem, uh, moderately stupid; and (b) within the last 48 hours, we learned that California, without the haste and pressure of a court order, nonetheless released to non-revocable parole hundreds of criminals with "a high risk of violence." But not to worry, now that it has the courts breathing down its neck, and many times the number of release decisions that must be made, California will, we can all presume, be releasing only Mr. Nicey.

I respectfully suggest that the better presumption is that California residents do what I did the day I graduated from Stanford Law School, i.e., move to Virginia.

One of the frustrating things about debating criminal justice issues is the extent to which the other side can says things that are just flat-out falsehoods and have them published without checking in supposedly respectable media.

In the Ten Miles Square blog at the Washington Monthly, Erik Voeten publishes a guest post by Marc Howard, titled Fear vs. Facts. Howard is discussing the California prison situation. Following some quotes from Justice Alito, Justice Scalia, DA Cooley, and yours truly (at least he has me in good company) about the potentially disastrous effects of prisoner release in California, Howard says this:

This panic-stricken reaction conveniently ignores the fact that more
prisoners are incarcerated as a result of property, drug, public order,
and other crimes than of violent crimes--and presumably the former would
stand to benefit from early release, not the latter [see Marc Mauer, Race to Incarcerate, 2nd ed. (New York: The New Press, 2006), pp. 30-35].

But Howard's "fact" is simply, clearly, objectively false. The truth is not hard to find. All you have to do is go to the California Department of Corrections and Rehabilitation's website, get the most recent California Prisoners and Parolees report and look at Table 8 on page 34 of the PDF file, page 16 of the printed document. Even if we look only current offense of commitment, which is all we have hard numbers for, the felons committed for violent crimes are a majority. Add in those with drug or property current crimes and violent priors (a number not readily available but surely substantial), and it will be a heavy majority.

Did Howard intentionally lie? Probably not. I'll give him the benefit of the doubt. But his assertion is incredibly lazy for someone accusing others of having their facts wrong. The citation is to a book which I can't access today, but even on its face the cite is flaky. A book published five years ago likely has data from six or seven years ago, as there is a time lag in available data. Are these figures specifically for California, the subject of the debate, or are they national averages? California never did have drug laws of the severity of the federal government or New York, and it has already reduced the percentage of inmates with drug convictions substantially, see Table 9 of the above report, so figures from other jurisdictions are irrelevant to this debate.

So, Professors Howard and Voeten, I respectfully suggest that you take the time to check your own facts before you accuse others of having theirs wrong. Oh, and a correction and apology are in order.

(The remainder of Howard's post is not about facts. Rather, it is stock arguments making highly debatable and hotly debated interpretations of facts. No need to rehash that debate here.)

The U.S. Supreme Court has denied a stay to Texas murderer Gayland Bradford. He is scheduled to be executed June 1. This will be the second execution after Texas's switch to pentobarbital.

AP has this story. "Bradford faces lethal injection Wednesday for the death of 29-year-old
Brian Williams during the December 1988 robbery of a Dallas grocery
store. Williams was on his second day on the job there as a security
guard. Bradford and a partner fled with $7."

Pennsylvania Supreme Court Strikes Local Residency Restrictions: The Pennsylvania Supreme Court this week struck down an Allegheny County ordinance prohibiting all registered sex offenders from living within 2,500 feet of any child care facility, community center, park, or school. The court found that the residency restrictions "clearly interfere" with the state's sex offender registration scheme, which was adopted to further "the rehabilitation, reintegration, and diversion from prison of appropriate offenders." If enforced, the restrictions would isolate sex offenders to "localized penal colonies of sorts," and would thus "subvert" some of these goals. The AP has this story.

Oklahoma Robbery Victim Found Guilty of First Degree Murder: An Oklahoma jury convicted pharmacist Jerome Jay Ersland yesterday of first degree murder for fatally shooting a masked robber inside a drugstore in 2009, reports Nolan Clay of The Oklahoman. Two female co-workers praised Ersland as a hero who saved their lives that day, but prosecutors alleged Ersland went too far in shooting the unarmed robber five more times after the robber fell to the floor unconscious.

"You know what you did was wrong": Melinda Rogers of The Salt Lake City Tribune has this story on Wednesday's sentencing of convicted kidnapper Brian David Mitchell. Victim Elizabeth Smart, whom prosecutors have praised throughout the trial for her courage and poise, addressed Mitchell: "You took away nine months of my life that can never be returned. But in this life or next, you will have to be held responsible for those actions, and I hope you are ready for when that time comes." As he'd done many times throughout the case, Mitchell sang church hymns throughout the hearing, and did not address the court. Judge Dale Kimball sentenced Mitchell to life, calling his crimes against Smart "unusually heinous and degrading."

California to Change Sex Offender Monitoring: The AP reports that starting next week, California parole agents will significantly change how they monitor and respond to alarms from tracking devices affixed to released sex offenders. The companies that provide the satellite-linked ankle bracelets will begin screening the tens of thousands of alarms that come in each month, weaning out alarms that signal less important problems such as a low battery or lost cell phone signal. The changes are intended to allow parole agents to spend less time reviewing the computer-tracked movements of parolees, and more time in the field responding to the most serious alarms and directly supervising the parolees.

Among the "special circumstances" that makes a premeditated murder punshable by death or life in prison in California is "the murder was carried out to further theactivities of the criminal street gang." Cal. Penal Code § 190.2(a)(22).

Today the Ninth Circuit denied habeas relief to LWOP-sentenced gangster Ruben Emery, who murdered Long Beach shop owner Henry Chow. Why did he do it? "[I]t was a fair inference from the circumstances of the shooting that Emery believed Chow needed to be 'taught' that there were severe consequences for directly disrespecting a young gang member, Alvarez's brother, and indirectly disrespecting Alvarez, Emery, and the affiliated gangs." That is sufficient. Under the Ninth Circuit's previous, strained interpretation, the killing would have to be for the purpose of furthering some other specific activity of the gang. No, said the California Supreme Court, there is no such additional requirement in the language of the statute.

Emery and his fellow gangsters are the ones who need to be taught about severe consequences.

A federal statute, 42 U.S.C. §1983, allows civil suits against state and local officers for violations of federal rights. That sounds fine except for the fact that those rights are so vaguely defined that in many contexts we won't know whether an action was proper or a violation until a judge rules years later. We don't want cops walking on eggs for fear of being sued on every marginal judgment call so that they don't protect us from the bad guys.

The Supreme Court's solution to this is "qualified immunity." The cop can't be held personally liable unless it was "clearly established" at the time of the act that it was a violation.

Okay, but how does the law become clearly established? Sometimes a precedent may be set by another kind of case, such as a motion to suppress evidence, but some issues don't come up this way. For example, excessive force in an otherwise proper arrest does not typically produce any evidence to suppress.

Computer Errors in California Lead to Violent Prisoners Being Wrongly Released: Jack Dolan of the Los Angeles Times reports computer errors prompted California prison officials to mistakenly release as unsupervised parolees an estimated 450 inmates with "a high risk of violence" and more than 1,000 additional prisoners presenting a high risk of committing drug, property, and other crimes. The prisoners were placed on non-revocable parole, a status intended for inmates judged to be at a very low risk of re-offending, are not required to report to a parole officer and can only be sent back to prison if they are caught committing a crime. The program was started in January 2010 to ease overcrowding and let parole officers focus on the supervision of higher-risk parolees. State Sen. Ted Lieu (D-Torrance), a former prosecutor who requested the investigation from the inspector general, says if the state can't properly identify who is eligible for an unsupervised parole program, "how can the public have confidence they can release 33,000 felons safely?"

Texas Bill to Address Backlog of Untested Rape Kits: Brian New of KENS 5 (TX) reports a bill awaiting signature from Texas Governor Rick Perry will require all rape kits to be tested, a move some state lawmakers are heralding as long awaited justice for thousands of rape victims in Texas. Many law enforcement agencies in the state contend there is little benefit to testing rape kits where the suspect is known, but Lynn Blanco with the San Antonio Rape Crisis Center said the benefit to testing all kits is the potential of catching a serial rapist. Each kit costs about a thousand dollars to be tested, and it is still unknown where the Texas Department of Public Safety will get its funding to pay for the tests.

New Hampshire Bill Would Expand Death Penalty to Include Home Invasion Murder: Garry Rayno of the New Hampshire Union Leader reports a bill approved by the state Senate Judiciary Committee that will go to vote in the Senate next week would expand the state's death penalty to include murder committed during a burglary or attempted burglary in an occupied structure. The bill is named for Kimberly Cates, who was murdered in 2009 home invasion. Sen. Jim Luther (R-Hollis) said that the expansion of the death penalty is warranted because it addresses murder committed in a person's home, a very sensitive location.

Cats' DNA Helps Catch Abusers: Andy Newman of The New York Times has this story about the first convictions in New York City using animal DNA. In the
case of Scruffy, a 1-year-old tabby also known as Tommy Two Times who
was so badly burned he had to be put down, burnt tissue found in a
vacant room was matched to a sample from Scruffy. In the case of Madea,
found badly beaten, an investigator noticed a suspicious umbrella and
dried cat saliva was matched to the cat. Only a handful of similar cases
have been won in the U.S., although in many cases the existence of DNA
evidence encourages defendants to plead guilty.

Yesterday, CJLF's Legal Director Kent Scheidegger was on the Diane Rehm Show from WAMU in Washington, along with Joan Biskupic of USA Today and Amy Fettig of the ACLU, discussing Monday's Plata decision. Carter Phillips, who represented the governor in that case, was on briefly at the beginning. Audio is here; transcript is here.

Listener James Flood of San Antonio sent us this email regarding the show:

I wanted to say thank you for participating in the panel
discussion on the Dianne Rehm show on NPR this week. I did not
appreciate how you were treated by the host and instead of facilitating a
discussion, she had a dissenting opinion and wanted to hear from the other two
panel members. Even though you were cut off and not allowed to respond to
at least three key points, you presented your position professionally and
respectfully. I do like a lot of the NPR programming, but I am
increasingly becoming disinterested in Ms. Rehm's show. I am a moderate
Republican and very much appreciate people such as yourself trying to have
rational, open discussion about these topics.

Following up on Bill's post, the Ninth Circuit panel opinion, the District Court opinion, and the opinions dissenting from and concurring in denial of rehearing en banc are here. From the latter opinion by Judge Tallman:

Judge Reinhardt and those who join him fault this Court for failing to further delay the inevitable. They fault us for not giving Donald Beaty yet another opportunity to delay the just punishment he has been resisting for more than 26 years. Admittedly, we, like the district court, are "troubled by the timing of both the Department of Justice's request that [the Arizona Department of Corrections's ('ADC')] sodium thiopental not be used in Plaintiff's execution and the ADC's decision to substitute pentobarbital." Nevertheless, we cannot say that Beaty has not been afforded all the process he is due. Apparently, the Supreme Court agrees. While we voted on whether to rehear this case en banc, the Court denied Beaty's petition for certiorari challenging the State's decision to substitute the drugs.

Lest anyone think that this is purely a dispute between Republican and Democrat appointees, I will note that Judge Tallman was appointed by President Clinton, as were two of the three judges in the panel that affirmed the District Court's denial of a stay.

The Supreme Court issued four opinions today, three of them in criminal or related cases, none major. Here are some quick takes:

Camreta v. Greene, No. 09-1454, a suit against Child Protective Service workers, is all about reviewability. The Court can review a case at the behest of the government employee who lost on the merits but won on qualified immunity, but this case is moot.

United States v. Tinklenberg, No. 10-5543, is about the federal Speedy Trial Act. The defendant's pretrial motion stops the clock, contrary to the Sixth Circuit holding. But the Sixth also erred in counting days. The Sixth's two errors cancel, so it is affirmed. (No, I'm not being snarky. Justice Breyer really says that.)

Fowler v. United States, No. 10-5443, involves a federal witness tampering prosecution for killing a local police officer who discovered the perpetrators preparing to rob a bank. This is only a federal offense if "there was a reasonable likelihood that a relevant communication would have been made to a federal officer." Justice Alito, joined by Justice Ginsburg, dissents.

The fourth case could also be considered criminal-related. Chamber of Commerce v. Whiting, No. 09-115, holds that the Legal Arizona Workers Act is not preempted by federal immigration laws. (This is not the super-controversial Arizona immigration law, but a different one, albeit controversial enough.)

Kent reported earlier today that the DEA had thrown a monkey wrench into Arizona's plan to execute child rapist and killer Donald Beaty. It seems that the DEA has taken a sudden interest in the country of origin of chemicals used in various states' lethal injections. The reasons for this stance are not known (not to me, anyway), and I prefer not to speculate. The action strikes me as highly irregular, if not unprecedented. On the other hand, I know some of the leadership of the DEA, and I have faith in its sobriety and fidelity to law. So I shall await further clarification, which I hope will be forthcoming promptly.

In this instance, however, the DEA's actions have been mooted. Beaty was executed a few hours ago. The Arizona Supreme Court and the United States Supreme Court refused any further delay.

Beaty was convicted of the murder of 13 year-old Christy Ann Fornoff, who disappeared on the evening of May 9, 1984, while collecting money on her newspaper delivery route.

Jury Render's Verdict in Sacramento Homeless Camping Trial: Cynthia Hubert of the AP reports a federal jury in Sacramento issued a mixed verdict yesterday in a class action suit on behalf of homeless people whose possessions were seized and destroyed in city police sweeps. The jury found the city failed to properly notify homeless people of how they could retrieve property removed from the illegal camp sites and implement policies for handling and storing those possessions. At this time it is unclear to what extent this verdict will have on future city policies for responding to homeless campsite complaints, or to what extent the homeless will be compensated for their lost property.

California Denies First Medical Parole: Don Thompson of the AP reports California parole officials yesterday rejected early release for 42 year-old Corcoran State prison inmate Steven Martinez, a convicted kidnapper and rapist who became quadriplegic after a prison fight. Martinez hoped to be the first prison inmate released under a new law that took affect this year aimed at cutting the number of inmates and cost of care in the nation's largest prison system. However, after a four-hour hearing parole board Commissioner John Peck said, "the 42 year-old inmate would pose an unreasonable threat to public safety, because he has said others could carry out his repeated threats against prison nurses and guards."

Murder Case Juror's Dismissal Improper: Bob Egelko of the San Francisco Chronicle reports the Ninth U.S. Circuit Court of Appeals on Monday overturned the conviction of Tara Williams, convicted of the 1993 murder of a convenience store clerk in Long Beach. The court found that trial Judge Richard Romero had gone too far in trying to end a jury deadlock after two days of deliberation by subjecting the lone holdout juror to an improper and broad ranging judicial inquisition. In a 3-0 ruling the court stated, "the constitutional right to a jury trial includes jurors freedom to deliberation without coercion." This ruling will entitle Williams to a new trial.

Former Street Preacher Convicted of Kidnapping Elizabeth Smart Set for Sentencing: The AP reports today's sentencing of 57 year-old Brian David Mitchell will end the heartbreaking ordeal that stalled for years after Mitchell was declared mentally ill and unfit to stand trial in state court. Mitchell was convicted of the 2002 kidnapping and unlawful transportation of a minor across state lines for the purpose of having illegal sex with then 14 year-old Elizabeth Smart. Smart, now 23, will speak at the sentencing hearing and publicly confront her kidnapper for the first time. Mitchell faces the possibility of a life sentence for each charge. Update: Mitchell was sentenced to life in prison.

Jared Loughner Incompetent to Stand Trial: U.S. District Judge Larry Burns today found suspected mass shooter Jared Loughner incompetent to stand trial, citing two recent court-ordered mental evaluations that claim Loughner cannot assist in his defense due to mental illness. Judge Burns said Loughner has an irrational distrust of his attorneys and delusions that prevent him from considering his legal defenses. Loughner had an outburst during the hearing, reportedly saying "thank you for the freak show," and was forcibly removed by court officers. Michael Martinez of CNN has this story.

Suppose on a dry, clear, sunny day you are driving on a lightly traveled freeway. A highway patrol officer clocks you at 71 where the speed limit is 70. Is he obligated to pull you over and write a ticket? Of course not. Yes, you are in violation, but your conduct does not present the danger that is the underlying purpose of the speed limit law. Driving 71 is not materially less safe than driving 70. The officer has discretion to not cite you, and nearly all officers would refrain.

Federal regulation of drugs has two purposes: to insure that drugs used for medical purposes are safe and effective and to keep them out of the hands of drug abusers. Neither purpose is implicated by the use of drugs to execute a death sentence.

In order to defeat your enemy, it helps to understand him. Thus, to defeat Islamic extremism, we ought to get to know it. This is likely to prove difficult, because its way of thinking is so completely alien to the liberal, Western tradition.

I thought I already knew that, but it was brought home yesterday as never before in a story told by Rep. Eric Cantor when he addressed the AIPAC policy conference:

A Palestinian woman from Gaza arrives at Soroka Hospital in Beersheba for lifesaving skin treatment for burns over half her body. After the conclusion of her extensive treatment, the woman is invited back for follow-up visits to the outpatient clinic. One day she is caught at the border crossing wearing a suicide belt. Her intention? To blow herself up at the same clinic that saved her life.

Q: What kind of culture leads a person to do that?

A: One against which pre-emptive war is not merely useful but imperative. It's nothing short of delusional to think that with enough "outreach," we can "engage" with people who think like that. We'd have better luck trying to "engage" with cancer.

Kent has noted the piece on SL&P about how the continuation of the 20 year-long reduction in crime just can't be figured out by the "experts."

I strongly suspect they don't have a bit of trouble figuring it out. The trouble is admitting it.

For years, these "experts" have bemoaned "incarceration nation." It now turns out that "incarceration nation" is another phrase for "reduced crime nation." But admitting this would upset the ideological applecart, so they'd sooner attribute it to sunspots. If this story hangs around another day, that's exactly what I expect.

The debate at SL&P has been enlightening, with quite a number of astute comments. You can follow it here. As I chimed in at one point, "By any measure, the two biggest stories about crime over the last quarter century are (1) we have put a lot more people in prison and (2) the crime rate has fallen significantly. The idea that these two things are unrelated is beyond bizarre."

Third Execution This Month in Mississippi Scheduled for Today: Reuters staff reports
Robert Simon Jr., 47, is set to be executed by lethal injection in
Mississippi at 6pm today. In 1990, Simon and an accomplice robbed and
shot to death a couple and their two children, later cutting off the
husband's ring finger to steal his wedding ring. Update: The U.S. Court of Appeals for the Fifth Circuit has issued a stay.

Chicago Mayor's Plan Unpopular with Police Union: Fran Speilman of the Chicago Sun-Times reports
Chicago Mayor Rahm Emanuel announced today his plan to shift 500
officers from specialized units to high-crime districts. Emanuel called
the move a "down payment" on his previous promise to put 1,000 more
police officers on the street. But Fraternal Order of Police President
Mike Shields argues this strategy of transitioning cops from elite units to beat cops will do little to help with the city's need for
additional law enforcement officers. "To say this is 500 more officers
on the street - no, it's not. Don't mislead the public. There are no
more police officers today than there were yesterday," said Shields.
"The issue is, we desperately need to hire more police officers. Until
they do the hiring, we're gonna be low on manpower, no matter how you
slice it."

Burglar Caught After Taking Call From Victim on Victim's Phone: Matthew Cella of The Washington Times reports
Crucito Serrano, 20, was sentenced Monday in Washington D.C. for
second-degree burglary after he was nabbed for the crime by answering a
phone call from the victim on the victim's stolen phone. The owner of
the phone, whose home Serrano and another person had burglarized,
recognized Serrano's voice after previously meeting him in the
neighborhood. Serrano was sentenced to two-and-a-half years for the
burglary, and could also face revocation of his parole and an additional
prison term in Maryland for a 2009 burglary conviction.

Ravens Linebacker Predicts Spike in Crime: If the players and
owners don't resolve the ongoing NFL lockout, we should expect a spike
in crime according to Ravens linebacker Ray Lewis. Claiming the
livelihoods of fans and stadium workers depend on the football season,
Lewis says: "Watch how much evil -- which we call it crime -- watch how
much crime picks up, if you take away our game. ... There's nothing else
to do." Nate Davis of USA Today has this story.

The title of this post is the headline of this NYT article by Richard Oppel (hat tip, SL&P). As has become routine, the experts are baffled because none of their pet theories about what causes crime rates to rise and fall fit the data. The once-popular demographic theory -- it's all about the percentage of young men -- crashed and burned when the baby-boom-echo crime wave failed to materialize. The economic theory near and dear to left -- crime goes up when Jean Valjean must steal bread to feed his starving family -- does not fit the present crime drop during a recession.

We all learn in law school that evidence of defendant's prior crimes is terribly prejudicial. That belief is deeply ingrained in our law of evidence. The Federal Rules of Evidence make an exception for sexual assault cases, but logically the probative/prejudice balance should be no different for other crimes. (New York does not have this exception, as noted in this post on the DSK case.)

But what if the premise isn't true at all? What if telling the jury about the defendant's priors is not the kiss of death? Larry Laudan and Ronald Allen contend that what we have all learned from the beginning is not true, and they advocate for a general rule of admissibility of the priors in the current issue of the Journal of Criminal Law and Criminology (vol. 101, p. 493).

The California Legislature is presently considering a pernicious piece of legislation to enable 16- and 17-year-old murderers to have their life-without-parole sentences modified to life-with-parole. Doug Krikorian of the Long Beach Press-Telegram has this story on Tom Shadden, whose son was murdered by a couple of teenage thugs, and his opposition to the bill.

It's one of the routine conceits of the liberal/professorial view of the world that criminal law hardliners are a bunch of cowboys/dopes/wahoos, while legal academia is laced with nuance, reflection and cool reason. If there's even a trace of embarrassment about, or even recognition of, this wonderfully self-flattering portrait, I have yet to detect it.

One of the mechanisms for polishing such a cozy view of professional life is the publication of articles in this journal or that, any number of which show up in SSRN. Publication creates the aura of scholarship -- an aura especially easy to maintain when those who do the "reviewing" share an identical, We Know Better view of the criminal justice system.

The resulting hothouse of liberal platitudes occasionally produces something so palpably absurd, however, as to become an unconscious self-parody. It happened today on Sentencing Law and Policy, which featured a gem titled, "Judge orders felons to write 5-page essays."

I could not help but be struck by the juxtaposition of today's two major crime and punishment stories. The first, which Kent has covered, is the Supreme Court's decision that overcrowding in California's prisons has caused constitutionally unacceptable conditions, and therefore prisoners by the thousand must be released from this overstuffed system.

The second, which oddly is getting less coverage, is that this same overstuffed system continues to produce remarkable reductions in the crime rate. This maintains a trend -- which not coincidentally developed over the last two decades of "incarceration nation" -- in which crime has dropped to the lowest level in fifty years.

What this means, specifically, is that, in the era of "incarceration nation," thousands fewer of our fellow citizens have been beaten, robbed, raped, swindled and yoked than was the case in the "compassionate" era of the sixties and seventies.

What is even more remarkable is that last year's dramatic crime reduction came at a time of continuing economic hardship and high unemployment. This is most strange, since, as we have been lectured for years, it's economic hardship that produces crime (as opposed to, say, the nature of society's response).

No normal person thinks that prisoners should be deprived of baseline medical care; they can't be, period. But we know now (as if we didn't before) that imprisoning people who commit crime produces less crime. We therefore also know that releasing them will produce more crime -- and the more released, the more crime is coming. Refusing to acknowledge this fact is just flat-out dishonest.

One of the many problems with prison litigation is that the cases tend to end up in the hands of the most pro-prisoner, anti-law-enforcement judges. In the Brown v. Platacase decided by the Supreme Court today, that problem hit a new low. Congress had required in the Prison Litigation Reform Act that a prisoner release order can only be issued by a special three-judge district court -- a throwback to days of yore when trial courts commonly had multiple judges for important cases. Well in this case the three-judge court was the criminals' dream team -- Circuit Judge Reinhardt and District Judges Henderson and Karlton. If counsel for the prisoners could have chosen the three judges in the entire federal judiciary most likely to rule in their favor, those are very likely the three they would have chosen.

Gov. Jerry Brown is nominally the losing party in today's Plata decision, but you wouldn't know it to read his statement on the case.

"The Supreme Court has upheld a lower court's decision that California
must reduce its prison population. In its ruling, the Supreme Court
recognized that the enactment of AB 109 is key to meeting this
obligation. We must now secure full and constitutionally guaranteed
funding to put into effect all the realignment provisions contained in
AB 109. As we work to carry out the Court's ruling, I will take all
steps necessary to protect public safety."

"Realignment" means shifting much of the work of the state prison system to local governments. Supposedly the state will also provide the money. Believing that is like Charlie Brown believing that Lucy will really hold the football while he kicks it this time, even though she has jerked it away every single time in the past.

Violent Crimes Declined Last Year: The AP reports the Federal Bureau of Investigation announced today that "violent crimes in the U.S. fell 5.5% from last year, with the biggest drop in the South." The crime rate dropped in all four categories of violent crime, murder, rape, robbery, and aggravated assault, and in all four regions of the country, the South (7.5%), the Midwest (5.9%) the West, (5.8%), and the Northeast (0.4%). Preliminary statistics from 2010 were compared with 2009 and based on information from more than 13,000 law enforcement agencies. The FBI's release is here.

New York Closes Loophole in Child Molestation Crimes: Sexual assault of a child 11 or 12 years of age may now be charged as first-degree felony sexual abuse in New York, reports Rocca LaDuca of the Observer-Dispatch (NY). The recent legislation, signed into law last week by Governor Andrew Cuomo, closes a gap in New York's previous sexual assault laws that left the highest felony only if the victim was younger than 11. Though the apparent legislative glitch was made known to legislators four years ago, opposition to tougher penalties from some lawmakers delayed the fix. "The loophole that existed was allowing children 11 and 12 years old to be molested and the crime that was committed was the equivalent to stealing a pack of cigarettes," said Oneida County District Attorney Scott McNamara. "That is wrong. They are not equal in crime and they shouldn't be equal in punishment."

Sentenced to the Kiddie Pool: After pleading guilty to rafting on a flooded river without life preservers and lying about it, an Ohio couple found themselves serving time in an unusual spot - a kiddie pool during a weekend festival, adorned in life jackets and handing out water safety brochures. Searchers spent hours looking for Grace Nash, 20, and Bruce Crawford, 22, last month after they were spotted in the flooded Grand River. The couple made it to safety, but lied to an official about being in the water. The AP has this story and picture.

A narrowly divided Supreme Court today upheld the massive prisoner release order in Brown v. Plata. The impact will be primarily political given that Brown, automatically substituted for the Governator as defendant, actually wants to unleash hordes of thugs on the people of California. A court order gives him political cover to do so, and legislation has already been rammed through, without hearings, and signed into law. Justice Scalia notes at page 13 of his dissent "the inevitable murders, robberies, and rapes to be committed by the released inmates."

What is the message for law-abiding people in California? Buy a gun. Get a dog. Put in an alarm system. Even seriously consider bars on the windows.

Oh, and don't bother investing much in a car. It will be open season on cars given that car thieves ("nonviolent offenders") will never go to prison no matter how many times they are caught.

Let us hope that in 2012 the voters of the United States continue on recovery of their good sense and the voters of California regain theirs. With both houses of Congress in the hands of persons of sense, the Prison Litigation Reform Act can be tweaked to present travesties such as this. When Californians come to realize just what they have done by giving control of the Legislature to the soft-on-crime crowd, perhaps they will come to their senses and throw the bums out.

John Walker Lindh, the hot tub terrorist from Marin County who decided in high school to turn his back on bourgeois America and travel to Afghanistan to take up arms with various human rights groups the Taliban, is back in the news.

Lihdh was originally captured after he participated in a failed prison break for Taliban inmates. During the break, a CIA officer, Johnny "Mike" Spann, was killed, but the government was unable to prove Lindh's involvement, so he was not charged.

Lindh agreed to a plea bargain in which he pled guilty to to supplying services to the Taliban and carrying an explosive during commission of a felony. He also agreed to a 20 year sentence, which was imposed on him in my old stomping grounds, the Eastern District of Virginia, in October 2002. In exchange, the government dropped charges that could have sent Lindh to prison for life.

That was then. Now, in the pages of the Onion New York Times, Lindh's father writes that, with Osama now sleeping with the fishes, we can take a pass on the agreement, let his kid out (no doubt to collect fat fees on the lecture circuit) and, you know, give peace a chance.

Papa Lindh's letter forms, from the Times' point of view, a nice bookend to its publication of the letter from Osama's kids demanding an international investigation of the legal basis for killing him, available through Kent's post here.

The NYT is headed for bankruptcy, but I'll miss it when it goes. You can't get its degree of hatred for the United States just anywhere.

Yesterday's decision of the Eleventh Circuit in Gilbert v. United States is getting some discussion in the blogosphere, mostly because of the overwrought dissents. As the majority opinion by Judge Carnes puts it,

Pumping all the pedals on the prose organ, they charge that by disagreeing with them on this legal issue, we have not only "neglect[ed] our responsibility," "shirked our duty," and "diminish[ed] the institution of the federal courts," Dissenting Op. of Martin, J., at 94-95, but have also "adopt[ed] a posture of judicial impotency that is shocking" and that "emasculates" this Court, Dissenting Op. of Hill, J., at 102, 104, and in the process we have rendered the judicial system "morally bankrupt," id. at 104, and converted the United States into a system of "'gulags,'" id. at 105. That is not our intent.

But of course the decision has done none of those things. It has simply enforced a clear and clearly constitutional law.

Investigators in 1982 Tylenol Case Want Unabomber's DNA: FBI officials are seeking a new DNA sample from "Unabomber" Ted Kaczynski as part of their investigation into the 1982 Tylenol incident, in which seven people died after taking pills laced with potassium cyanide. The unsolved case was reopened in February 2009, prompted by the 25th anniversary of the crimes and advances in forensic technology made since the original investigation. An FBI spokesperson says Kaczynski has refused to provide a sample voluntarily, though Kaczynski claims in a handwritten motion filed earlier this month that he would provide a sample if the FBI would satisfy a certain condition (which is unknown at this time). About 60 items seized from Kaczynski's Montana cabin in 1996 will soon be up for grabs on an online government action, with proceeds to benefit four of his victims. As of yesterday, bidding for his 35,000-word handwritten manifesto stood at more than $12,000. CNN has this story.

Jury Recommends Life Without Parole for Mother Who Microwaved Baby: An Ohio jury recommended a sentence of life without parole for China Arnold, convicted of killing her 28-day-old daughter by placing her in a microwave, reports the AP. The jury had the option of recommending a death sentence, but selected life instead after six-and-a-half hours of deliberation. This was the third time Arnold had been tried for the crime; the first trial ended in a mistrial, and her second conviction was overturned by an Ohio appellate court last November.

Indiana Ruling Sparks Protest: The AP reports a ruling by the Indiana Supreme Court (see previous post here) that there is no constitutional right to resist unlawful police entry into a home has sparked outrage from lawmakers, threats to the court, and a planned rally against the ruling at the statehouse. Despite claims that the ruling "pretty much wipes out the Fourth Amendment," law professor Ivan Bodensteiner says the decision brings Indiana in line with around 40 other states that don't recognize a common law right to resist illegal police entry. Bodensteiner also clarifies that the ruling doesn't permit police to enter home unlawfully, but only holds that if they do, the resident's remedy is to file a civil claim against the officer rather than resort to physical violence.

Memo to Carjackers: Check the Fuel Gauge: Joshua Melvin of the San Mateo County Times reports a suspected carjacker's getaway plan was foiled when the stolen car ran out of gas. Stephen Allen, 20, allegedly ordered a mother and child out of their car in a restaurant parking lot, then made it about eight miles down the road before hitting empty.

Among the weakest of the arguments against the death penalty (and that is saying a lot) is the claim of "geographic disparity." The Supreme Court decided 35 years ago that the death penalty must be discretionary, not mandatory, and making decisions by discretion necessarily means that different people will decide borderline cases differently. Variation by county within a state, far from being a defect, is local democracy (in electing prosecutors) and jury of the vicinage (a constitutional right) working as designed. See, e.g., my report to the Connecticut General Assembly, pages 18-19.

Courts around the country have regularly rejected arguments based on "geographic disparity," and the California Supreme Court has rejected it many times. However, the attorney for Sean Vines asked that court to reconsider. Vines had been given a job by two McDonald's restaurants and repaid them by robbing them both, murdering an employee in one of them. So Vines's appellate attorney asks Cal. Supreme to reconsider its long-established precedent because of a subsequent U.S. Supreme Court decision. Can you guess which decision?

A boy who was 14 when he helped throw another boy off a parking ramp
to his death was properly sentenced to life in prison without parole,
the Wisconsin Supreme Court ruled Friday.

Omer Ninham's lawyers argued that the sentence violated the U.S.
Constitution's prohibition on cruel and unusual punishment given
Ninham's age when the crime was committed. State attorneys countered
that nothing prevents such a sentence for juveniles in homicide cases.

Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution. In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

The insufferable Bryan Stevenson says he will take the case to SCOTUS. Okay. They have to address the issue sometime. Bring it on.

Lester Jackson has this article at The Moral Liberal on the extended delays in death penalty cases. He begins noting that some victims' families support repeal because they consider the delays unfixable and ends with a call to fight, not surrender. Along the way, he takes a swipe at my use of Virginia as an example for other states "because it can execute the clearly guilty in an average of 'only' seven years...."

Chalk up one more state to avoid the thiopental supply problems in lethal injection executions by switching to pentobarbital. Katherine Sayre of the Press-Register reports from Atmore, Alabama:

[Jason] Williams ... was the first inmate in Alabama to be executed using pentobarbital in the state's three-drug lethal injection. The state was forced to change the drug after a shortage of sodium thiopental across the U.S.

* * *

Williams killed four people and injured three others during a shooting rampage in south Mobile County in the early morning hours of Feb. 15, 1992.

Defense lawyers for Williams challenged the use of pentobarbital,
arguing that it hasn't been proven to cease consciousness or otherwise
stop the ability to lose pain. His lawyers that that violated the
constitutional ban against cruel and unusual punishment.

They haven't got no noses,The fallen sons of Eve;Even the smell of rosesIs not what they supposes;But more than mind disclosesAnd more than men believe.

So laments a dog in G.K. Chesterton's poem The Song of the Quoodle. But even our relatively dull sense of smell can sometimes identify a substance. In the search and seizure context, it is not unusual for the distinctive smell of marijuana smoke to be a factor in the probable cause determination. See Monday's Supreme Court decision in Kentucky v. King.

Zoe Tillman reports at BLT that the D.C. Court of Appeals has upheld an open-container conviction based on the officer's sniff, without a lab test. Other evidence included the defendant's grogginess and disorientation, her bloodshot eyes, and the smell of alcohol on her breath and in her car. The opinion is here.

Top lawmakers in the House and Senate reached a deal to extend the
Patriot Act for four years, a week before key provisions were set to
expire, top aides in both chambers say.

The pieces of the law that
allow the government to compel businesses to release records, issue
roving wiretaps, and monitor so-called "lone wolf" terror suspects were
set to run out on May 27. The outline of the deal between Speaker John
Boehner (R-Ohio), Senate Majority Leader Harry Reid (D-Nev.) and Senate
Minority Leader Mitch McConnell (R-Ky.) still needs to pass both
chambers in the next seven days to avoid a lapse in the law.

For a number of years, Prince Georges County, a D.C. suburb, was run by County Executive Jack Johnson. The County has long had a "pay-to-play" reputation -- i.e., if you want a County contract, you start handing out bribes. Things got no better under Johnson. Last November, he was indicted by the feds for extortion and various other forms of corruption.

At the time, the reaction was bravado. We've all heard it before: The prosecutors are cowboys, I've done nothing wrong, I can't wait for the opportunity to tell the whole story at trial.

The criminal justice system, which we are elsewhere assured is devoted to keeping the downtrodden in their place, must have flubbed it this afternoon when, on the say-so of a hotel maid, it indicted the (now former) head of the IMF. Some excerpts of the CBS story:

Dominique Strauss-Kahn, his political career in shambles and his leadership of the IMF a memory, was formally indicted Thursday and made a new bid to get released from jail while he awaits trial on charges that he sexually abused a hotel maid....

His lawyers have promised that, if released, he won't flee to France. They have asked that Strauss-Kahn be placed under house arrest in New York, and wear an electronic device to monitor his movements.

Strauss-Kahn is charged with attacking a 32-year-old housecleaner Saturday afternoon at his Manhattan hotel suite. The West African immigrant told police that he chased her down a hallway, forced her to perform oral sex and tried to remove her stockings.

I of course have no idea what actually happened, but, as noted last night, a pretty good idea, courtesy of defense "experts," of what could get thrown up against the wall.

The Senate has rejected, 52-43, the attempt to break the filibuster on the nomination of Goodwin Liu to the Ninth Circuit. A 3/5 majority was required under the Senate rules.

During the Bush Administration, Senator Barack Obama supported the use of the filibuster to block judicial nominees. Professor Goodwin Liu forcefully advocated considering a nominee's viewpoints, not just objective qualifications. A nominee should be rejected, he said, if his viewpoints were "out of the mainstream."

Putting those two together, filibuster of this nomination is the right thing to do. One could, of course, take the opposite of those positions. Many Republicans did during the Bush Administration, and many Democrats have been saying similar things in the present debate. However, it would be very wrong for one party to unilaterally disarm and allow the other to have free rein whenever it has the White House and a Senate majority while that other party shows no such restraint and blocks votes based on viewpoint alone. Such unilateral disarmament would result in a skew of the judiciary.

The 43 Senators voting no, despite heavy pressure and groundless accusations of racial motive, did the right thing and the courageous thing. Thanks and congratulations to them all.

Update: Looks like Bill and I were posting at the same time. The WSJ had this article before the vote this morning.

Although the voting is still in progress in the Senate, it appears that Harry Reid has failed to invoke cloture, thus effectively killing, at least for now, the nomination of Professor Goodwin Liu for a seat on the Ninth Circuit.

Current results suggest that all the Republicans except for Sen. Murkowski have voted against cloture, plus Democratic Senator Ben Nelson of Nebraska. That would leave 53 votes in favor of ending debate. Harry needed 60.

The Ninth Circuit has been saved from being even more of an embarrassment. Of course it needs a good deal more than that, but sufficient unto the day are the victories thereof.

UPDATE: The final vote was 52-43, meaning that the motion to end debate failed by 8 votes. That is a substantial margin, very likely meaning that Professor Liu is cooked for good.

The AP reports that beginning in October, the federal government must start writing all new or substantially revised documents produced for the public in plain English. That is, no more "heretofores," "hereinafters," or "thereunders." President Obama signed the Plain Writing Act last fall after encouragement from the "plain English" movement to bring the government's jargon back down to Earth.

Indiana School District Wants to Allow Bus Drivers to Search Students: The Associated Press reports a school district in western Indiana wants to allow its bus drivers to search students for drugs or weapons. The proposal would give bus drivers the authority to search a student and their belongings if there is an immediate threat of harm or danger to others on the bus.

Be Careful What You Ask For: Peter Busch of KPHO CBS 5 News (AZ) reports convicted rapist Timothy Boles's petition for a new DNA test to clear his name from a 1988 sexual assault backfired on him. Not only did the results confirm his conviction in the case, they also linked him to an unsolved 1991 rape case involving a 12-year-old girl. The Arizona Justice Project paid for the new DNA tests for Boles, who is already in prison for life. "As they push for these efforts of exoneration, we're likely to see
additional cases. I don't think this will be the only one we ever see," said Maricopa County Attorney Bill Montgomery.

Third Women Sentenced to Florida's Death Row: Kaustuv Basu of FloridaToday.com reports Margaret Allen, 45, was sentenced to death today for the kidnapping and murder of her friend, Wenda Wright. Allen will now be the third woman on Florida's death row. Prosecutor Garry Beatty said Wright was tortured to death. "If that
doesn't justify the death penalty, how bad does it have to get?" said Beatty.

First Medical Parole Hearing in California: Sam Stanton of the Sacramento Bee reportsSteven Charles Martinez, a quadriplegic and inmate at Corcoran State Prison, will become the first state prison inmate to face a medical parole hearing that starts on Tuesday. Former Gov. Arnold Schwarzenegger signed a state law in September as a cost-saving measure that would allow inmates who are in
a vegetative or highly incapacitated state and deemed to pose no threat
to society to win release from prison with the approval of the Board of Parole Hearings. Taxpayers provide $500,000 annually for Martinez's medical care. Martinez's case has gone before the state Board of Parole Hearings in 2008 and 2010 under California's "compassionate release" program, and the board denied his release both times. "Martinez's mental state
remains unchanged," the board concluded last September. "He remains a
violent person capable of using others to carry out his threats."

Kent has noted an article discussing possible defenses for the illustrious Dominique Strauss-Kahn, the jet-setting Frenchman who for the moment heads the IMF, and who has been accused by New York authorities of attempting to rape a maid in his $3000 a night suite at a posh hotel.

Although I have been a lawyer for more than 30 years, I admit I'm slow to catch on. Not once does the article suggest that DSK just tell the truth; indeed, the word "truth" is completely absent. What gets discussed is what might sell, and how it might be made to sell. Whether the possible stories coincide with the reality of what happened appears to provoke zero interest either in the authors or anyone they interviewed.

The typical defense line, on those rare occasions when asked about this devil-may-care attiitude toward the truth, is to talk about something else: It's the government's burden; the state has all the resources; the Framers were more concerned with the abuse potentially bred by state power than with private misbehavior, no matter how serious.

And all that is true. But, as this case is in the process of teaching us, it's also cynical, dispiriting, an indulgence for dishonesty, and an invitation to injustice. Is this the best we can do?

Joseph Ax and Jennifer Golson have this article for Reuters on possible defense strategies in the DSK case. Trashing the victim is high on the list, despite the shield law. Then, there are two suggestions from academics:

At the same time, the defense could try to emphasize Strauss-Kahn's own character, arguing he was not the sort to commit sexual assault, said Todd Berger, who teaches criminal law at Rutgers University School of Law at Camden.

Or his lawyers could point to Strauss-Kahn's troubled history with women -- among other reports, a French journalist accused him of trying to force himself upon her in 2002, and his affairs have long been considered an open secret in France -- as evidence that he suffers from mental illness, said James Cohen, a professor at Fordham University School of Law.

I would suggest he not try both of those tactics before the same jury. Actually, either one would bring in evidence of DSK's "troubled history," a history I noted here might not be admissible in the prosecution's case in chief. The second tactic would require the defense to bring the evidence in itself; the first would open the door to that evidence in rebuttal.

Three Republicans who have rarely supported filibusters of judicial
nominees said today they will vote to filibuster appellate nominee
Goodwin Liu, a bad omen for Liu a day before a crucial Senate vote.

Republican Sens. Lindsey Graham (S.C.), Johnny Isakson (Ga.) and John
McCain (Ariz.) said they plan to vote against ending debate on Liu's
nomination. The vote is scheduled for 2 p.m. on Thursday, and Liu needs
60 votes to advance to a final confirmation vote. A judicial nominee of
President Barack Obama has never been successfully filibustered, but Liu
may be the first.

In separate comments, the three senators all cited the same reason
for opposing Liu: the law professor's 2006 testimony against the
confirmation of Justice Samuel Alito Jr.

Alleged Serial Killer's DNA Sample is Missing: The investigation of alleged Ohio serial killer Anthony Sowell is getting messier, reports Rachel Dissell of The Plain Dealer (OH). Last week, Ohio prosecutors announced that an untested rape kit was a match to Sowell and that the rape kit had been obtained before five of Sowell's alleged 11 victims went missing. Now Ohio officials admit that although a DNA sample was collected from Sowell while he was in prison in the 1990s, the sample was never processed or entered into the state's database. The Virginia lab, to which Ohio sent its DNA samples for testing pending completion of the state's lab, also discovered recently 200 biological samples that had never been tested. Sowell's sample is not among the 200.Pennsylvania County Jury Recommends Death Sentence for First Time in 25 Years: Riley Yates and Pamela Lehman of The Morning Call (PA) report a Northampton County jury yesterday recommended a sentence of death for quadruple-murderer Michael Ballard - the first such sentence in the Pennsylvania county since 1987. In what prosecutors call a "slaughter" and "massacre," Ballard last summer stabbed to death his former girlfriend, her father, her deaf, blind, and wheelchair-bound grandfather, and a neighbor who heard screaming in the home and tried to help. At the time of the murders, Ballard was on parole for slitting the throat of a man in 1991 and stealing the dead man's wallet and car. The jury reached its unanimous decision after two hours of deliberation.

Court Did Not Follow Proper Procedure When Closing Drug Cartel Sentence: The Fifth Circuit yesterday ruled a federal district court in Houston did not follow proper procedures when it closed to the public the sentencing of Osiel Cardenas-Guillen, former head of a notorious Mexican drug cartel. At the time of his 2003 arrest in Mexico, Cardenas-Guillen was considered by the government to be "one of the most wanted, feared, and violent drug traffickers in the world." The government requested a closed sentencing proceeding for reasons of public safety and the district court agreed, sentencing Cardenas-Guillen in February to 25 years and ordering him to forfeit $50 million in a closed proceeding held without any public notice. The Houston Chronicle, who had previously attempted to keep the proceedings in this case open to the public, discovered the closed courtroom on the day of sentencing and was denied access. The Fifth Circuit found this to be error: "the press and public have a First Amendment right of access to sentencing hearings, and [] the district court should have given the press and public notice and an opportunity to be heard before closing the sentencing proceeding in this case." Dane Schiller of the Houston Chronicle has this story.

The
US Senate will likely vote tomorrow afternoon on cloture on the
disastrous nomination of Goodwin Liu for the Ninth Circuit Court of
Appeals. This nomination needs to be stopped.

The Ninth Circuit is the worst federal court in the country when
it comes to reviewing criminal cases. Here are a few of its
decisions:

-- It overturned, on patently erroneous grounds, the conviction
of a man who had brutally raped and nearly killed a 9-year-old girl,
and it did so on a basis that would have prevented retrial and put
him back on the street. Fortunately, the Supreme Court unanimously
reversed.

-- It usurped to itself the power to second-guess parole
decisions of the parole board and governor in murder cases, and it
did so for years until the Supreme Court finally, and without
dissent,
ruled that this was no part of that court's business.

-- It overturned a conviction for premeditated murder because
the defense lawyer abandoned a hopelessly weak insanity claim. The
Supreme Court unanimously reversed.

But the wrong decisions the Supreme Court reverses are only the
tip of the iceberg. In most cases, the federal court of appeals
decision is the final decision. It is vitally important that we
have good judges who understand the need for justice on these
courts. For a court as bad as the Ninth presently is, it is
essential that new appointments make the court better. Appallingly,
President Obama has nominated someone who would make this court even
worse.

Eleanor Beardsley reports for NPR, "Attitudes about the Strauss-Kahn affair have been changing on an almost
hourly basis in France ever since the country woke up to the news that
DSK, as he's known, had been arrested in New York for attempted rape
and sexual assault." The charges were shocking but the pictures even more so.

The second shock was when cameras inside the courtroom showed DSK
being arraigned before the eyes of the whole world, like, said one
commentator, a common criminal. Cameras are not allowed in French
courtrooms, and those pictures shocked the French to their core, says
Francois d'Orcival, of the newsmagazine Valeurs Actuelles.

* * *

Gerard Carreyrou, an op-ed writer at the newspaper France Soir, says
many people are criticizing the American system, but at least it treats
everybody the same. The French system, he says, hasn't changed since
Louis XIV, and he calls the criticism hypocritical.

Just as important is the attitude about sexual predation.

But the revelation that that code of silence may be enabling powerful
men to indulge in unacceptable sexual behavior is starting to change
attitudes.

On a popular television talk show
Tuesday, male and female panelists spoke about how men who hit on women
in France were protected by a sort of silence, or a "boys will be boys"
attitude, and said that sexual harassment is not taken seriously enough.

In other words, France is where America was 30 years ago on this issue. Some folks seem to think that whenever Europe and America differ, the Europeans are necessarily right and we are necessarily wrong. No, not necessarily. Not even usually.

Oh, and I especially like that "hasn't changed since Louis XIV" line, even if it is a tad of an exaggeration. I'm pretty sure the current President hasn't locked up opponents in the Bastille and thrown away the key.

An old lawyer joke asks, what's the difference between a lawyer and a rat? Answer: There are some things a rat won't do.

This came to mind when I read the story titled, "Elizabeth Smart Not So Psychologically Damaged, Kidnapper's Attorney Argues." The piece notes:

Robert Steele, [defendant Brian David] Mitchell's attorney, admitted that his client did cause some psychological impact, but "in a legal sense, the story is not the extreme psychological injury. The story is her overcoming the extreme conduct of my client."

To support the claim, Steele referred to Smart's testimony, in which she called herself a survivor...

Mitchell was found guilty of kidnapping Smart, who was 14 at the time, from her Salt Lake City bedroom in 2002. The kidnapping led to eight months of assaults by Mitchell, who would rape the girl numerous times during any given day.

Well, sure, I can see where if you're a terrorized 14 year-old being held in an ersatz dungeon and getting raped every day for months on end, this might produce some psychological impact, but hey, people, really, let's not get carried away. She'll get over it.

The story goes on to note:

James Backman, a law professor at Brigham Young University whose son was one of the prosecutors in the Smart trial, says the defense's tactic will likely be denied. "If you're a defense attorney, you want to make sure every stone was unturned," he said.

Maybe it's time to change the canons of ethics so that counsel can select a stone here or there to leave unturned. That way, future generations will be able to say there are some things, albeit not much, a lawyer won't do.

Daniel Lee Bedford was executed by Ohio this morning for a double murder he committed 27 years ago. His victims were Gwen Toepfert, 25, and her boyfriend, John Smith, 27.

Bedford had been granted a stay of execution by a federal district judge in Ohio, on the basis of his lawyer's claim that he could not remember the murders. The stay was lifted by the Sixth Circuit early this morning, and the Supreme Court declined to intervene.

The news story states that those performing the execution had trouble finding a vein for the injection, and that it took them 11 minutes to do so. If that is correct, we are likely to hear more later today.

Supreme Court Refuses Appeals for Three Condemned Texas Inmates: The Associated Press reports the U.S. Supreme Court has denied the appeals of three men on death row in Texas, two of whom were convicted of killing children. See Monday's orders list. No execution dates have been set for any of the three men.

Convicted Ohio Killer Release Prompts Push for Victim's Rights: The Associated Press reports Thomas Craft of Ohio will be released from prison next month, 11 years after he was convicted of killing and dismembering his wife and leaving her body parts at various sites in Michigan, including in a McDonald's dumpster. The pending release has prompted his former wife's family to push for "Lynette's Law," legislation that would require victim approval of the conditions of an inmate's post-release supervision. After learning that Craft planned to moved to Wisconsin to be near the couple's sons following his June release, Lynette Craft's family successfully petitioned the prisons
department for in-state monitoring of Craft, who will spend the next five years in a half-way house in Ohio.

Mississippi Execution Scheduled for Later Today: The Associated Press reports Rodney Gray is scheduled to be executed in Mississippi today at 6pm local time after the U.S. Supreme Court denied a stay of execution. Mississippi Governor Haley Barbour also denied Gray's bid for clemency. Gray was sentenced to death in 1996 for killing a 79-year-old woman whose body was discovered on a bridge in 1994 with a fatal shotgun wound in the head.

New York Senate to Vote on Violent Felony Offender Registry: NewsLI.com (NY) reports the New York Senate is set to vote today on "Brittany's Law," a bill that would require violent offenders to register with the New York State Department of Criminal Justice Services upon release from prison. The law is named for 12-year-old Brittany Passalacqua, who was murdered along with her mother in 2009 by a violent convicted felon on parole after serving part of his sentence for assaulting his infant daughter in 2003. The violent felony offender registry would be similar to the New York
State Sex Offender Registry and would require offenders to register annually after their release from prison. Several other states have
established a violent felony offender registry, including Montana,
Illinois, Indiana, Florida, Kansas, Louisiana, Nevada, and Oklahoma.

Convicted Sex Offender Gets 830 Years to Life: The Associated Press reports 44-year-old Bennie Dale Moses of West Sacramento has been sentenced to 830 years to life for sexually abusing a young girl for nine years, beginning in 2000 when she was 12 years old. In March he was convicted on 62 counts of sex and oral copulation with a child, where Yolo County Superior Court Judge Stephan Mock ruled that Moses had previously been convicted of 12 separate "strike" offenses.

First Conviction Under Federal Hate Crimes Act: The Lovely County Citizen (AR) reports that the Justice Department announced today that 19-year-old Sean Popejoy of Arkansas pleaded guilty in federal court to one count of committing a federal hate crime and one count of conspiring to commit a federal hate crime. This is the first conviction for a violation of the Matthew Shepard and
James Byrd Jr. Hate Crimes Prevention Act, enacted in October 2009. Popejoy could face a maximum punishment of 15 years in prison.

American Society of Magazine Editors' Disgraceful Award: Cully Stimson has this so-titled post on The Heritage Foundation's blog, regarding Scott Horton's receipt of the American Society of Magazine Editors' award. Horton published a story in Harper's Magazine in January 2010 claiming the deaths of three Gitmo detainees in 2006 were "most likely" caused by U.S. personnel, rather than suicides as confirmed by Navy investigators. Stimson writes Horton's story "was a complete fiction and its flaws have been exposed from every conceivable quarter," including military officials and classified documents published by Wikileaks. For Horton to receive an award for such a piece, Stimson opines, "does not reflect well on the standards for reporters" and is "a disgrace."

With Kent and Christine putting up serious posts, I hesitate to bring up Lindsay Lohan, but her latest escapade in court did feature one noteworthy item, so bear with me.

Ms. Rehab didn't bother to show up to enter a plea (which is permitted), but her lawyer entered a "no contest" plea in her behalf. Thus she was convicted of stealing a $2500 necklace from a jewelry store.

Among other things, this violated her most recent probationary term, and she was sentenced to 120 days in jail, which, so far as I have been able to determine, no one expects her to serve. Overcrowding, dontcha know.

In addition, however, the news story reports, "Judge Sautner went on to order that Lohan also complete a Shoplifters Alternative course."

I'm not real clear on what a "Shoplifters Alternative course" is, but I think it could be conducted fairly quickly in three words, i.e., "Pay for it."

The one noteworthy point is that our system is now so feckless and deluded as to think a "course" about the wrongfulness of shoplifting could possibly be useful. The idea that an adult needs to be given a lesson plan about why people shouldn't steal is just mind-boggling -- yet another indication that anything resembling seriousness is, in too many courtrooms, disappearing from criminal law.

Federal Judge Blocks Ohio Execution: The AP reports a federal judge today blocked the execution of Ohio death row inmate Daniel Lee Bedford, scheduled to die by lethal injection tomorrow for the shooting deaths of his ex-girlfriend and her boyfriend. Bedford's attorneys had argued he cannot be executed because is mentally incompetent and suffers from dementia. The Ohio Supreme Court, the Ohio Parole Board, and Governor John Kasich all rejected similar arguments. A state judge also tossed a unique civil suit last week seeking to stop the execution.

Governor Brown's Prison Realignment Must Start With Facts, Not Fantasy: California State Senator Sharon Runner and Sacramento County District Attorney Jan Scully have this so-titled piece responding to recent legislation signed by Jerry Brown transferring custody and control of an estimated 45,000 California felons to local communities. Though Brown characterizes the move as one that will save money by eliminating "a revolving door for lower level offenders and parole violators who are released within months," Runner and Scully opine "[t]he Governor has activated a public safety time bomb, which will soon explode in communities throughout California."

Parolee on Small Pink Bicycle: A Los Angeles parolee was arrested last week after police spotted him wearing a black inmate jumpsuit and riding a 10-year-old girl's stolen bicycle just hours after his release from prison. Michael Toplin, 31, claimed a friend had given him the bike and that he had just left Home Depot. Veronica Rocha of the LA Times has this story.

Steven Greenhut of Pacific Research Institute has this article in the City Journal on the Republican proposal for fixing California's budget.

But much more encouraging is that the Republican plan suggests how
simple reforms can save serious dollars. Take the provision of medical
care for prison inmates. According to the Assembly GOP's budget white
paper, "The cost of providing health care to state prisoners has been
the fastest growing part of the corrections budget. After the [federal]
receiver took control of the system in 2006, medical costs skyrocketed.
They reached $2.5 billion a year, including mental health care. The cost
of health care for each inmate per year in California is approximately
$11,600, while prison healthcare costs $5,757 in New York; $4,720 in
Florida; $4,418 in Pennsylvania; and $2,920 in Texas. While costs have
increased dramatically, it has not improved the quality of care enough
to take the system out of federal court receivership." Under the
Republican plan, the state would contract out the correctional
health-care system, saving $400 million. But that would mean taking on
the powerful California Correctional Peace Officers Association, the
prison-guard union that just won an absurdly generous contract from the
governor.

As noted earlier, the Supreme Court today released its opinion today in Kentucky v. King, a case that asks the question - at what point do police impermissibly
create exigent circumstances, such that they cannot rely on that exigency to
enter a home without a warrant?

In a criminal case in which the defendant is accused of an offense of
sexual assault, evidence of the defendant's commission of another
offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.

However, Dominique Strauss-Kahn, head of the IMF and leading candidate for President of France, is not charged with sexual assault in federal court. Sexual abuse is a federal crime in certain places under federal jurisdiction, see 18 USC §§2241-2242, none of which includes Times Square and vicinity. See Bill's post and this AP story by Jennifer Peltz. The case is being prosecuted, as it should be, in New York state court.

But New York does not have an equivalent to Rule 413(a). Governor Pataki proposed it back in 1999 as part of the Sexual Assault Reform Act, but it did not make the cut in the final bill enacted the following year. Evidence of prior misconduct is generally inadmissible with some exceptions. See People v. Maggio, 70 A.D.3d 1258, 896 N.Y.S.2d 220 (2010).

So would a jury in the prosecution of M. Strauss-Kahn hear the testimony of Tristane Banon? Jamey Keaten reports for AP that she "is likely to file a criminal complaint accusing International Monetary
Fund chief Dominique Strauss-Kahn of sexually assaulting her nine years
ago, her lawyer said Monday."

Prosecutors would have to make the testimony fit one of the exceptions. They shouldn't have to. The New York Legislature should adopt a rule like FRE 413(a).

With apologies to Jerry Lee Lewis, there was a whole lotta recusin' goin' on at the US Supreme Court in this morning's orders list.

In the previous list
of May 2, there were only six recusals. There were four federal cases
in which former SG Kagan was recused, a common and expected occurrence
during her first year after that transition. There were also two Second
Circuit cases in which sophomore Justice Sotomayor was recused, also
expected.

Today, in contrast, there were thirteen recusals.
There are eight cases in which the United States or a federal official
is a party, with Justice Kagan recused, plus one Second Circuit case,
with Justice Sotomayor recused. That is a bump from the previous three
lists, but within normal variation. On top of that, though, Chief
Justice Roberts is recused in three cases and Justice Kennedy in one.

The US Supreme Court today agreed to take up the question of Bivens suits against employees of privately operated federal prisons, granting certiorari in the case of Minneci v. Pollard, No. 10-1104. The SCOTUSblog page, with links to cert-stage documents, is here.

Today the Supreme Court decided Kentucky v. King, No. 09-1272, regarding the "exigent circumstances" exception as applied to the situation where the exigency is created by the police's own action. As is common in drug cases, the exigency was the possible destruction of the evidence by the occupants of an apartment in response to the police's knock and announcement that they were at the door.

The win for the State is not surprising, but the margin is. The decision was 8-1, with Justice Ginsburg dissenting alone.

The holding is that the police-created exigency exception to the exigent circumstance exception to the warrant requirement applies only when the police action creating the exigency is itself a violation of the Fourth Amendment. This is narrowest (i.e., most favorable to the police) of the possibilities.

There will be much wailing and gnashing of teeth over this decision. The next pocket part to LaFave's treatise will excoriate the opinion. I consider this to be further confirmation of the exclusionary remedy's adverse impact on substantive Fourth Amendment law. Just as the judges of old defined burglary as narrowly as they could to avoid hanging burglars, so judges of today narrowly define constable blunders to avoid letting criminals go free.

"Equal Justice Under Law" is the motto inscribed above the entrance to the Supreme Court. It is also the object of relentless derision from those who view the American criminal justice system with contempt. To them, the system is simply a tool for the upper class to intimidate those farther down the ladder. Cases are not about evidence, and citizens are not indicted because of their behavior. Instead, cases are about bigotry, economic or racial or both, and citizens are indicted to put them in their place.

You might think this weary, Marxist-style critique would have given up the ghost by now. Not exactly. Read any defense-oriented blog and you'll see it has just as much currency as ever.

So I had to take note when I saw tonight that the head of the IMF -- an international Mr. Big who must define the upper class if anyone does -- got taken off his first-class flight to Paris and arrested on the word of a hotel maid that he had sexually assaulted her. MSNBC has the story.

Anecdotes can be misleading, for sure. But every now and again, you see one that gives you a reminder. In this incredibly fair-minded and decent country, Equal Justice Under Law is not just a slogan.

Despite the heroic success of just one week ago, in which American intelligence and military might combined to kill the biggest enemy of civilized society, the U.S. government could still proceed with prosecutions against the CIA interrogators whose work contributed to that victory.

Message two: On Tuesday, CIA Director Leon Panetta admitted that the agency's use of "enhanced interrogation techniques against some of those [suspected terrorist] detainees" played a role in tracking Bin Laden down.

Message three: In August, Attorney General Eric Holder appointed a prosecutor to investigate alleged CIA interrogation abuses - a move that could lead to charges against some of the very people who helped get Bin Laden.

Message four: Career federal prosecutors had closed a probe of the same matter with a no-action recommendation.

It matters not whether the agents in question contributed a little or a lot to Bin Laden's death. They did their best at a time when the United States was horrified by the prospect of another attack to safeguard their fellow Americans.

Marc Fisher, a senior editor at the Washington Post, laments the fact that property crimes, including residential burglary, are not taken seriously. Resources are not devoted to solving them, and when the perpetrators are caught they are insufficiently punished. In Fisher's case, solving the crime was particularly easy. The burglar was so brazen that he used Fisher's son's stolen laptop to post his own picture with some of the stolen items on the son's Facebook page.

In his statement at the sentencing, Knight said that "even though property was taken, no one was harmed."

That
was too much for the judge. "This wasn't just a crime against
property," he told the burglar. "This was a crime against people. Young
men in Mr. Knight's position need to understand that if they make the
choices Mr. Knight has made, the consequences will be serious."

That
would be heartening, if true. But before the system can start issuing
such consequences, everyone from police to prosecutors to judges would
have to equate an invasion of someone's home with a violent physical
assault. Although one crime leaves visible bruises, those heal. Both
kinds of invasions, however, create lasting wounds of a deeper kind:
They melt away security and erase trust.

Property crimes are often relatively easy to solve, with the right resources. All we lack is the will to take them seriously.

In this case, the officer had come to the home in response to a domestic
violence call. He found the defendant, Barnes, outside. The officer
and the defendant exchanged heated words, and the defendant started
yelling at the officer. The officer threatened to arrest the defendant
if he didn't calm down, and the defendant threatened to have the officer
arrested if he arrested him. At this point the defendant's wife came
outside, threw a duffel bag in the defendant's direction, and told him
to take the rest of his stuff. She then went back inside the home.
The defendant then reentered the home following his wife, but once
inside he blocked the officer (and another officer) from entering. The
officers asked if they could enter the home, and the defendant's wife
pleaded with the defendant to let them enter. The defendant refused.
The police then entered anyway, and the defendant "shoved [an officer]
against the wall." The officers then tazed the defendant and arrested
him.

The Indiana Supreme Court ruled 3-2 that there is no such right to resist unlawful police entry into the home. The real question is how did this case got two dissenting votes.

Every now and again, when I was a federal prosecutor, the defendant would come my way through a "sting" operation, in which he was typically selling drugs for guns, or vise versa. His counterpart was, unknown to him, an undercover federal agent. When caught red-handed, the defendant sometimes would offer up an entrapment defense, essentially claiming that, but for the agent's importuning, he was really just Mr. Nicey.

Sting operations are controversial, because they can be made to seem as if the government is going out of its way to create criminals, rather than spending such resources as it has to apprehend the numerous criminals already open for business.

Thus I bring you this story about a recent sting operation in New York. Readers may judge for themselves whether the government was out looking for trouble, or was looking to untrack a catastrophe. The short of it is that the two fellows involved tried to peddle drugs to an NYPD officer in exchange for what can only be described as a fully stocked arsenal. The plan, you will not be surprised to hear, was to kill Jews in Manhattan.

Neither at home nor abroad are we going to win the war that has been thrust upon us by being passive. If we don't look for them, they are going to find us.

Untested Rape Kit Matched to Ohio Accused Serial Killer: Leila Atassi of The Plain Dealer (OH) reports Cuyahoga County prosecutors announced this week that an untested rape kit has been matched to Anthony Sowell, accused of killing 11 women and dumping their bodies around his house. The sample was taken in 2009 after a female victim reported she was kidnapped and raped repeatedly by a man named "Tony" in a foul-smelling house over a two-day period. Prosecutors say the rape kit was never sent to the crime lab for analysis, though Cleveland Heights Police Captain Martin Lentz claims the department sends all rape kits to be tested. Five of the 11 women whose bodies were discovered at Sowell's home went missing after the rape kit was taken, and Sowell's DNA may have been in the state database after serving a 15-year prison term for attempted rape.Judge Denies Unique Attempt to Stop Execution: "Enough is enough is enough is enough," said Common Pleas Judge Norbert Nadel today when rejecting a unique attempt by Ohio death row inmate Daniel Bedford to stop his execution. Bedford has been on death row for 27 years - longer than the lives of both of his victims - for murdering his ex-girlfriend and another man in 1984. His attorneys filed a civil suit claiming that dementia and a series of strokes has left Bedford insane and unable to understand why he is scheduled for execution next Tuesday. Kimball Perry of The Cincinnati Enquirer has this story.

Inmate Now Regrets Tribute to Larry Bird: Oklahoma inmate Eric Torpy is now regretting his decision to ask for an additional three years in prison to make his total sentence 33 years - the same number as his favorite basketball player Larry Bird, reports Stan Grossfeld of The Boston Globe. In 2005 Torpy asked an Oklahoma county judge to tack on three more years to his sentence after pleading guilty to armed robbery and shooting with intent to kill. Torpy now claims the prosecutor and judge should never have gone along with what he refers to as his "mind games" with them. "I'm sorry, Larry Bird, but I don't love you that much to hang out to 2033. I'm ready to go out now," Torpy says.

I recently noted that one high ranking al Qaeda operative was so dedicated -- or so crazy -- that he reportedly received injections to promote impotence and recommended the injections to others. He received them "so more time could be spent on jihad - rather than being distracted by women."

Ron first discusses the question of considering new evidence, never presented to the state court, in an attempt to show that the state court was "unreasonable." That issue was decided 7-2 in an unusual line-up. See also our day-of-decision post here. But Ron also thinks the decision on the underlying ineffective assistance claim is even more important. The Court clears up lower court misinterpretations of Williams, Wiggins, and Rompilla, he says, and this is "game changing stuff" if the lower federal courts actually follow it. (This point was decided 5-4, with the usual line-up.)

In Michigan State Police v. Sitz, 496 U.S. 444 (1990), the US Supreme Court upheld, under certain conditions, the use of sobriety checkpoints. But that was for people driving cars under the influence (DUI).

San Francisco's famously quirky marathon, the Bay-to-Breakers* race, is having its 100th running this weekend, but it has gotten too quirky for some corporate sponsors, so the city wants to tone it down. Will Kane has this story in the SF Chron, including this gem:

This year the race will have a handful of checkpoints - police won't say
how many - scattered along the route. There, police officers and
private security guards will screen racers and revelers to make sure
they are properly registered and aren't intoxicated.

Running under the influence (RUI)?

Naturally, my mind turns immediately to thoughts of the Fourth Amendment. It's an occupational hazard. How exactly are the cops going to "screen." Are they going to merely sit in a public place and watch for probable cause (or even reasonable suspicion) that a person is so severely hammered as to be "in a condition that he or she is unable to exercise care for his or her own safety or the safety of others" or "interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way." (Cal. Penal Code §647(f).) That would be okay, but only the falling-down drunk would qualify. Perhaps they will be looking for violations of a local ordinance. In any event, I expect we will see some litigation out of this in the famously litigious City by the Bay (and the Breakers).

* For those unfamiliar with San Fran geography, the race begins at San Francisco Bay on the east side of the city, crosses the peninsula-tip that is San Francisco, and ends at the Pacific Ocean (the breakers) on the west side.

Suspects Busted for NYC Synagogue Terror Plot: CNN reporter Susan Candiotti reports two North African men, one a U.S. citizen, were arrested last night for planning an attack on a Manhattan synagogue. When the two were arrested, New York City police discovered three or four guns and a hand grenade. The men were arrested as part of a NYPD undercover sting operation after the potential terror threat had been under radar for several months. Law enforcement sources say the two were acting on their own. One suspect has an extensive criminal record involving drugs and other non-terror related crimes involving guns, while the other suspect has only a minor criminal history. The state is handling the terror case because federal officials declined for reasons unknown. D.A. Files Lawsuit Against Former Governor on Behalf of Crime Victims: San Diego County District Attorney Bonnie Dumanis filed a lawsuit Wednesday in San Diego's Superior Court to nullify former Gov. Arnold Schwarzenegger's decision to commute the prison sentence of Esteban Nunez, the 22-year-old son of former Assembly Speaker Fabian Nunez. Esteban was one of two men who pleaded guilty to voluntary manslaughter and other charges in connection with the 2008 fatal stabbing of 22-year-old Luis Santos on the campus of San Diego State University. Nunez was initially sentenced to a 16-year prison term before Schwarzenegger commuted his sentence to seven years, saying Nunez should not have received the same sentence as co-defendant Ryan Jett, who was responsible for inflicting the wounds that killed Santos. Schwarzenegger told Newsweek that his friendship with Fabian Nunez factored into his decision and that he felt good about it. Dumanis' lawsuit alleges that the governor had a constitutional obligation under the Crime Victims' Bill of Rights to notify the victims and their families of his intent to commute Nunez's sentence and to provide them an opportunity to be heard. "Historically, the governor was entrusted with this power to represent
the conscience of the community and to ensure against miscarriages of
justice," Dumanis said. "Not as quote, 'a favor to a friend.'" Because Schwarzenegger is no longer governor, he is not named as a defendant in the suit, but Gov. Jerry Brown and representatives from other state agencies are named instead. Dana Littlefield of the San Diego Union Tribune has this story.

Death Row Inmate Wants to End His Appeals and Die: If 49-year-old death row inmate Gary Haugen gets a judge to sign his death warrant, Oregon could soon hold its first execution in nearly 14 years. Haugen wrote letters to the state court administrator in the Supreme Court about his wishes to end all appeals and be executed. Haugen killed a Portland woman 30 years ago, but is on death row for killing another inmate in 2003. He wrote his reasoning for the request was because of "the lack of any
faith in the Oregon judicial system, my disgust, disdain, the arbitrary
and vindictive actions of this system, I refuse to barter, I don't
negotiate. This is for my peace of mind ... at least respect my will and
initiate the process for execution A.S.A.P!" This Friday, Haugen will ask a Marion County judge to sign his death warrant and if he's successful than he could die by lethal injection about three months from now. Dan Tilkin of KATU News has this story.

Former San Quentin Warden Appointed to New Role: Carol J. Williams of the Los Angeles Time reports the abolitionist nonprofit Death Penalty Focus is expected to announce today its new executive director appointee - former San Quentin Prison Warden Jeanne Woodford, who oversaw four executions during her 30-year career in California corrections. "I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," said Woodford. Hat tip to How Appealing for the link.

Fish Tall Tails Could Soon Be Crime in Texas: It may soon be a crime to tell a tall tale about a fish in Texas, reports Erica Goode of The New York Times. After unanimously passing the State Senate, a bill arrived on Governor Rick Perry's desk yesterday that makes it a misdemeanor - and in some cases a felony - to misrepresent the size, weight, or provenance of a fish in a fishing tournament.

Today's Claude Rains Award for Mock Shock goes to AAG Lanny Breuer, who triumphantly announced the conviction of a corporation, Lindsey Manufacturing Co., for paying a bribe to get a contract in Mexico. Nathan Koppel has this post at WSJ Blog.

Okay, all together now. We are shocked, shocked, to learn that there is bribery in Mexico.

So why is this a crime against the United States? Has Congress made it a crime for US companies to do business in countries where bribery is pandemic? Back to Logic 101, the syllogism goes like this:

1. It is a US federal crime for a US business to pay a bribe in a foreign country.2. In country X, bribery is so pervasive that it is effectively impossible to do business without paying bribes.Therefore, in country X it is a US federal crime for a US company to do business.

Yes, I guess Congress has made it a US crime to do business in some countries.

Koppel's post notes the "ominous milestone" of convicting the corporation itself, a first. " 'Lindsey Manufacturing is the first company to be tried and convicted on FCPA violations, but it will not be the last,' said the DOJ's Lanny Breuer."

Why? Would you arrest someone for littering if he drops his empty Starbucks cup in the middle of the county dump?

The laws that legislatures pass often seem like abstractions, but they have real impact on real people. There is nothing like putting a human face with a proposal to bring that home to the legislators who will vote on it.

Sen. Edith G. Prague, an opponent of capital punishment, said today she is refusing to vote to repeal the death penalty this year at the request of Dr. William A. Petit, sole survivor of a home invasion that left his wife and two daughters dead. Her switch leaves the repeal effort one vote short in the Senate.

Prague, 85, a Democrat of Columbia, asked Senate leaders to delay the repeal vote until next session, after the trial of the last of two defendants in the Cheshire home invasion case, in which Petit's wife was strangled and his daughters bound and left to die in their burning home.

"I actually believe in repealing the death penalty," said Prague, a
senator for 16 years. "For Dr. Petit, for me to do one more thing to
cause him some kind of angst, I can't do it."

Alleged Yemeni Terrorist Charges Cockpit on Flight to SF: San Francisco Chronicle staff writer Henry K. Lee reports a Yemeni immigrant allegedly tried to break into the locked cockpit of American Airlines Flight 1561 bound for San Francisco this past Sunday evening. On Tuesday a judge ordered him held without bail on the grounds he was a threat to the community. Prosecutors say Rageh Ahmed Al-Murisi, who previously lived in California and New York carried no luggage. He had $47 in cash, valid and expired documents from New York and California, and two postdated checks. One witness claims Al-Murisi yelled 30 times, "Allahu akbar" (Arabic for "God is great") as he charged toward the cockpit and rammed the door with his shoulder. Several flight attendants, a retired police officer, a retired Secret Service agent, an off-duty pilot, and an Olympic shot put champion were able to subdue the alleged terrorist. Ahmed Almoraissi, cousin of Al-Murisi, said his cousin was not a terrorist and has worked as a math teacher in Yemen, where his wife and children live: ""He's a very normal guy. He has no intention of
hurting nobody. I don't know what happened on the plane. It doesn't make
sense." Al-Murisi is charged with interfering with a flight crew and yesterday was deemed a threat to the community and ordered to be held without bail.

NYC Announces New Cellphone Alert System: AP writer Samantha Gross reports the U.S. government and local authorities will soon be able to reach people directly on their cellphones to warn them of imminent danger. The Personalized Localized Alerting Network, or PLAN, technology was approved by Congress in 2006 under the Warning Alert and Response Network Act. The emergency alert system will be used for critical messages from the president, information for life-threatening situations, and Amber Alerts to warn the public about missing or abducted children. The system is expected to launch by the end of the year in New York City and Washington, D.C., and will eventually spread to most if not all U.S. cellphones in the upcoming years as people exchange their old phones with new devices containing a special chip that will allow them to receive the messages. Every wireless carrier is expected to participate and people will receive the messages free of charge. Wireless carriers may permit cellphone users to opt out of receiving notifications from local officials regarding Amber Alerts, but no one will be able to refuse incoming presidential alerts. Officials say the PLAN technology will allow the alert messages to take precedence over regular phone calls or text messages and even in emergencies when the system's capacity is overloaded, the alerts will still go through. Messages will appear on the front screen, instead of in a text message inbox, and will arrive with a distinct ring and possible vibration.

Jerry Brown channels Dirty Harry: Do you feel lucky?: SF Chronicle writer Debra J. Saunders has this so-titled piece on the "two Jerry Browns" that inevitably emerge on the issues of crime and public safety. Saunders writes that during a recent telephone conversation with the Governor, he "sounded more like his old self, a left-wing talk-show host of the 1990s, than the tough-on-crime Oakland mayor and state attorney general who followed." Saunders opines that Brown's latest move, signing a bill that calls for transfer of nearly 40,000 felons from state to local custody, may prove beneficial for a limited category of criminals, but gambles significantly with California's public safety: "The question is, to paraphrase not Brown, but Dirty Harry: Do you feel lucky?"

11th Circuit Considers Challenge to Juvenile LWOP: The 11th Circuit is considering whether sentencing a juvenile murderer to life in prison without the possibility of parole constitutes cruel and usual punishment, reports the AP. Kenneth Loggins was convicted of killing a hitchhiker at the age of 17. He was originally sentenced to death, but his sentence was reduced to life after the Supreme Court ruled a juvenile cannot be executed. His attorneys are now urging the court to expand their ruling in Graham v. Florida to include juveniles convicted of homicide offenses.

Following up on yesterday's post, Elizabeth Crisp has this story in the Jacksonville Clarion-Ledger. " 'While this does not bring closure to our pain, it is a step in our healing process,' said Glenda Reid's brother, Mike Lee."

Regarding the state's switch to pentobarbital, " 'It worked out just like we were told - no problem,' [DOC Commissioner] Epps said Tuesday evening.... The new drug costs $400 more per execution, bringing the total to about $11,400 each, Epps said." Considering that $400 is in the ballpark of one hour of attorney time, spending that much to eliminate a legal issue is a bargain. Now it's time to eliminate some more by going to the Ohio single drug method.

There was little protest. A group from Jackson demonstrated outside
Parchman. In Hattiesburg, 17 protesters bowed their heads in solemn
silence as the bells tolled at Sacred Heart Catholic Church, announcing
his execution.

I have heard anecdotally that the protest crowds tend to be smaller when the perpetrator murdered a child. True believers are still opposed, but more of them just have somewhere else they really have to be that day.

Two very influential behavioral science experts, Marnie Rice & Grant Harris, have a paper that was just published in the journal, Psychology, Public Policy, and Law about the effectiveness of androgen deprivation therapy with sex offenders. Unfortunately, the paper is embargoed for most university libraries until next week, but even a glimpse of the abstract is quite revealing:

We review the effects of androgen deprivation on the sexual behavior of
human males. Although eunuchs have existed in many cultures over the
last 4,000 years, there is scant detailed and specific information in
the historical record about castration status and sexual behavior. From
the literature on modern-day eunuchs who are not sex offenders, we
conclude that androgen deprivation reduces sexual desire and behavior,
including sexual intercourse. Most men, especially those who did not
volunteer for the treatment, experience the side effects as extremely
bothersome. Androgen deprivation therapy (ADT) receives endorsements
from some clinicians who treat sex offenders, and it probably reduces
sexual recidivism among men who freely request the procedure, but good
evidence is sorely lacking. Men who freely request and persist with ADT
are probably an especially low-risk group. Little is known about the
effects of sexual or violent recidivism among sex offenders who do not
freely request it. Little is known about the long term effects of ADT on
sexual behavior in general, and sexual recidivism in particular, or
about long-term health effects. Clearly, much more research is needed
before ADT has a sufficient scientific basis to be relied upon as a
principal component of sex offender treatment.

Lay people often think that physical or chemical androgen therapy is the way to go with sex offenders. But as Rice and Harris hint, we have little data to be so confident. More importantly, low testosterone in men is strongly associated with depression and anxiety and these psychological symptoms have been linked with general criminal recidivism as well as sexual offending. Likewise, low androgens in men is associated with numerous physical aliments, including osteoporosis, diabetes, obesity, and cardiovascular disease. This treatment modality really isn't where we should be placing our proverbial hopes on.

There are any number of principled people who oppose the death penalty, but, let's face it, a big chunk of the opposition is no more than kumbaya sloganeering. It has all the seriousness and depth of over-the-hill hippies looking through "Your Introduction to Medicare" while humming "Give Peace A Chance."

But I digress.

One of the favoriite abolitionist slogans is: "The Death Penalty Is Dying." This is usually announced in conjunction with the reminder that it's no longer practiced in the caucasian countries of Europe -- but oddly omitting that it remains in most of the world, including the Orient, the Pacific Basin, the Subcontinent, Africa and the Middle East.

Today's Washington Times story illustrates that, contrary to the sloganeering, the death penalty is, far from dying, expanding to a partcularly primitive form of murder that only now is being recognized as among "the worst of the worst":

NEW DELHI - India's top court recommended the death penalty for perpetrators of "honor killings," calling the practice "barbaric" and "feudal" in a ruling cheered Tuesday by activists who hope it will inspire opposition to a crime seen as anathema to a democratic nation.

Most victims have been young adults who fell in love or married against their families' wishes. In some cases, village councils ordered couples killed who married within the same clan or outside their caste. While there are no official figures, an independent study found around 900 people killed each year in India for defying their elders.

The Supreme Court on Monday affirmed a life sentence imposed for a man convicted of killing his daughter but added a warning: "People planning to perpetrate honor killings should know that the gallows await them."

The US Supreme Court has denied a stay to Mississippi murderer Benny Joe Stevens. Elizabeth Crisp has this story for the Jackson Clarion-Ledger. Stevens "was convicted in 1999 of killing his ex-wife, Glenda Reid; her husband,
Wesley Lee Reid; her 11-year-old son, Dylan Lee; and Lee's 10-year-old
friend Heath Pounds in a dispute over child support.... Eight relatives of his victims also will witness the execution,
including Stevens' daughter, Erica who he shot during the attack." See also this article by Crisp on May 8.

On May 4, Jack Elliott of AP had this story on the claim of Stevens and others that the state's switch from thiopental to pentobarbital violated the Administrative Procedures Act.

Among the worst sources of disinformation in public policy debates is the study that merely finds a correlation between two variables but is claimed to show a causal relation. The study shows A is correlated with B. Therefore, it is claimed, A causes B and we have to crack down on A to reduce B. There is a host of other possibilities, one of which is that A and B have no direct relation to each other but both have some relation to C.

In the current issue of the Journal of Law and Economic, Michael Ward of UT Arlington has an article titled Video Games and Adolescent Fighting. Here is the abstract (emphasis added):

Psychologists have found positive correlations between playing violent
video games and violent and antisocial attitudes. However, these studies
typically do not control for other covariates, particularly sex, that
are known to be associated with both video game play and aggression.
This study exploits the Youth Risk Behavior Survey, which includes
questions on video game play and fighting as well as basic demographic
information. With both parametric and nonparametric estimators, as there
is accounting for more demographic covariates, the video game effects
become progressively weaker. The overall link between video games and
fighting is modest and not statistically significant. The remaining
positive association appears only for individuals who play 4 or more
hours per day.

Boys, on average, play more video games than girls and also, on average, get into more fights. Well, duh! So if you just do a correlation of gaming and fights without controlling for sex, you get a positive correlation. But it's not real, or at least not strong enough to say for sure it is real.

We see stuff like this all the time, especially with racial claims. We need to get rid of the notion that simply showing a correlation can establish anything or even shift a burden of proof to the other party. A correlation by itself is such weak evidence of causation that it should not even be admissible, much less permitted to raise a presumption, at least until the most plausible alternative reasons for the correlation have been ruled out.

Orin Kerr at VC points us to this letter from sons of Osama bin Laden protesting that he was not tried in a court of law. The letter, as Orin notes, is not in The Onion as one might expect but rather in the New York Times.

On April 29, the Pennsylvania Supreme Court decided a fairly typical state postconviction capital case in Commonwealth v. Spotz, No. 576 CAP. Spotz is a spree killer, and he is clearly guilty of multiple homicides. The majority opinion is 131 pages long, and it slogs through numerous arguments, finding them all without merit.

The remarkable opinion here is the concurrence of Chief Justice Castille. He is severely critical of the Federal Defender in this case and other capital cases. There are two themes here. One is the institutional question of why the Federal Defender is representing clients on state collateral review at all. The second is a problem with capital appeal/habeas representation culture generally throughout the country, although the Chief Justice's criticism is directed specifically at the Federal Defender. Many, perhaps most, of the people doing this work have come to believe that it is not only ethically permitted but even required that they spam the courts with a blizzard of paper raising every conceivable claim.

But that is not correct. As I noted in my recent report to the Connecticut General Assembly,

California Assembly Passes Bill to Close Loophole in Rape Cases: Jim Sanders of the Sacramento Bee reports the California Assembly yesterday unanimously passed AB 765 in response to an unusual rape case in Santa Barbara County. The victim was asleep in her bedroom while her live-in boyfriend slept on the couch. An intruder entered the home, crawled in to her bed, and began initiating sexual activity with the woman, who thought the man was her boyfriend until she heard him cough from the other room. Under California law, the intruder could have been charged with felony rape if the offender had impersonated the victim's spouse - but the law does not include impersonation of a live-in boyfriend. The bill was sponsored by the Santa Barbara County District Attorney's office in response to its frustration at not being able to charge the offender with felony rape. AB 765 expands the penal code definition to include cohabitants. The bill now goes to the Senate for a vote.

Long Island Murders May Involved Multiple Killers: Joseph Goldstein of the New York Times reports that the eight sets of human remains discovered along a stretch of Long Island's beach may be the work of multiple killers. Investigators have been trying to determine if the remains of four prostitutes found close to Gilgo Beach in December are related to the four sets of human remains discovered on Jones Beach Island. Officials report that two of the more recently discovered victims were disposed of in a similar manner, which was dissimilar from the four originally identified victims. Investigators initially believed the murders were the work of one serial killer, but police now report the isolated area appears to have been used as a dumping ground for some time. While the bodies have all been found along desolate stretches of the same road, those dumping the bodies show varied degrees of concern that the bodies would be identified.

Texas House Passes Bill for Immigration Law Enforcement: Chris Tomlinson of the Associated Press reports the Texas House passed a bill authored by state Rep. Burt Solomons that would ban cities or police departments from telling law enforcement officers not to actively enforce immigration laws. Governor Rick Perry declared the measure to be emergency legislation. Rep. Leo Burman (R) said that states are justified in taking a more active role against illegal immigration in light of the federal government's ineffectiveness. An estimated 1.6 million illegal immigrants are in Texas, according to the Pew Hispanic Center in Washington.

Many in Law Enforcement Want to Limit Felons' Access to Guns: Michael George with ABC Action News reports that while statistics show overall crime has declined in recent years, law enforcement officers killed in the line of duty continues to occur at tragic rates. 68 officers have been killed on the job nationally so far this year. In many recent cases in Florida, the suspected killer was a convicted felon with access to a gun, leading to a discussion regarding background requirements and increasing the penalties for convicted felons in possession of firearms. "Almost 80 percent of police officers killed over the course of the last
couple years, that were killed by gunfire, were killed by felons. That
ought to push us for some heavier legislation," said Hillsborough County Sheriff David Gee.

Murder Appeal Raises Confederate Flag Issue: Nathan Koppel and Ashby Jones of The Wall Street Journal have this story on a capital murder appeal currently before the Louisiana Supreme Court, in which a convicted murderer is challenging the prejudicial effect of a Confederate flag outside the trial courthouse. Felton Dorsey, an African American, was convicted and sentenced to death in 2009 for killing Joe Prock, a white firefighter, during a robbery of Prock's mother's home. Dorsey's attorneys claim the conviction should be overturned because, among other claims of error, the Confederate flag that has been flown outside the Shreveport courthouse since 1961 was a source of racial discrimination in the case, especially after a prospective black juror was excused after expressing his concerns about it. The Caddo Parish District Attorney's Office denied in its brief that the prosecution discriminated against Dorsey during jury selection, but did not address arguments related to the flag.

Court Appearances by Camera Saving Big: Pretrial video court appearances in criminal cases are more proving more convenient for defendants and are saving the states up to $30 million in transportation costs, reports Colleen Long of the AP. A typical system includes a webcam or video camera in a detention center that allows a defendant to "appear" via a secure internet connection. The practice has gathered support so far from judges and civil liberties groups, though some attorneys have expressed concerns with the idea of video appearances during trials. "The technology is really exploding. It's gotten much cheaper and easier to run, and states are reporting a huge range of savings," said Jim McMillan of the National Center for State Courts, which recently studied the use of video in U.S. courts.

California to Expand Familial DNA Testing: California Attorney General Kamala Harris has increased the state budget to double the number of familial DNA searches, reports Maura Dolan of the Los Angeles Times. The state first began using the technique in 2008 in a limited category of cases, but application may expand after its early success, including the identification and arrest of the alleged Grim Sleeper serial killer. California, Virginia, and Colorado are currently the only states that allow familial searching.

Michigan Lawmaker Calls for Revised Inmate DNA Law: The AP reports Michigan state Senator Mike Kowall (R) is supporting revision of the state's inmate DNA collection law that he drafted ten years ago. Prison officials and the state Attorney General's Office believe that under the current law, they are only allowed to collect a sample just before the inmate is released. Kowall claims inmate DNA collection should not be so limited, and prosecutors around Michigan were shocked and frustrated to learn of the prisons' practices. The law doesn't affect most prisoners because counties generally take DNA samples before convicts are sent to prison, but about 6,000 current prisoners who are refusing to provide samples were in prison before counties began such a practice.

I have long contended that the correlation of crime with poverty is not so much from poverty as such but rather from the poor parenting and bad peer influences that are correlated with poverty. This is further confirmation.

The title above, minus the question mark, is the title of a book by Byron Johnson. The WSJ has this review by James Q. Wilson, one of America's foremost thinkers about crime (and author of Thinking About Crime). "This book has two messages. First, religion reduces crime. Second, look what happens to scholars who say this is true."

Wilson reviews that the familiar shortcomings of the quasi-experimental studies that attempt to prove the first proposition -- "selection bias" and all that. The fact that graduates of a program do better than nonvolunteers and dropouts does not and cannot definitively answer the question of whether the program works because they may very well have been the more motivated subgroup who would have done better anyway. The kinds of controlled studies that we do to determine if a drug is safe and effective, for example, can't be done in this area.

The second point is a sad commentary on the state of Political Correctness in contemporary American academia. Not new, but still sad.

Senator Obama opposed tribunals, renditions, Guantanamo, preventive detention, Predator-drone attacks, the Iraq War, wiretaps, and intercepts -- before President Obama either continued or expanded nearly all of them, in addition to embracing targeted assassinations, new body scanning and patdowns at airports, and a third preemptive war against an oil-exporting Arab Muslim nation -- this one including NATO efforts to kill the Qaddafi family. The only thing more surreal than Barack Obama's radical transformation is the sudden approval of it by the once hysterical Left. In Animal Farm and 1984 fashion, the world we knew in 2006 has simply been airbrushed away.

The interrogations of KSM (which included waterboarding) and the interrogation of Hassan Ghul (held in "black site" prisons) were key to identifying the courier; the president then authorized military action in a foreign country without going to the United Nations or informing the host government; the military action was unilateral, and we did not consult with our allies; Congress was not informed of the military action; and it increasingly appears that no serious effort was made to treat Osama bin Laden as a criminal [literally shoot and ask questions later]. The monitoring of Abu Ahmed al-Kuwaiti's phone call was a result of an extensive global wiretapping system. Furthermore, as Charles Krauthammer notes, the helicopters used in the raid came from Bagram and Jalalabad; if we had withdrawn from Afghanistan on the antiwar Left's timetable, we would have had no bases from which to launch this operation.

President Obama has been in office long enough for the mask to slip a few times. In domestic policy, the face turns out to belong to Herbert Marcuse. But in fighting the war on terror, it belongs, amazingly enough, to George W. Bush.

There are some who would have us believe that, with Osama's having been de-commissioned, the war on terror is over. Generally, these are the same people who thought it never existed to start with, or if it did, that we should "fight" it by means "true to who we are." This was code for "fight it by trashing John Yoo, menacing CIA interrogators and hoping for the best."

Most observers, even on the Left, know full well the war is not over. Charles Krauthammer explains why today. As he notes,

The bin Laden operation is the perfect vindication of the war on terror. It was made possible precisely by the vast, warlike infrastructure that the Bush administration created post-9/11, a fierce regime of capture and interrogation, of dropped bombs and commando strikes. That regime, of course, followed the more conventional war that brought down the Taliban, scattered and decimated al-Qaeda and made bin Laden a fugitive.

Without all of this, the bin Laden operation could never have happened. Whence came the intelligence that led to Abbottabad? Many places, including from secret prisons in Romania and Poland; from terrorists seized and kidnapped, then subjected to interrogations, sometimes "harsh" or "enhanced"; from Gitmo detainees; from a huge bureaucratic apparatus of surveillance and eavesdropping. In other words, from a Global War on Terror infrastructure that critics, including Barack Obama himself, deplored as a tragic detour from American rectitude.

The Supreme Court of New Zealand, that is. How Appealing points us to today's decision in Morse v. The Police. Valerie Morse was charged with disorderly conduct for burning a New Zealand flag during Anzac Day celebrations in 2007 as a protest against that country's participation in the war in Afghanistan. The judges deliver their opinions seriatim, discussing such things as the meaning of "offensive" in the disorderly conduct statute and the need to give the statute an interpretation consistent with the New Zealand Bill of Rights Act of 1990.

However, not a single judge thought it was necessary to discuss the foreign decisions of Texas v. Johnson, 491 U.S. 397 (1989) or United States v. Eichman, 496 U.S. 310 (1990). That is correct. The US Supreme Court's interpretation of the First Amendment to the United States Constitution has no bearing on the legal question under consideration. There is some discussion of Australian cases interpreting a very similar statute adopted at nearly the same time. Under those circumstances, there is a reasonable inference they were intended to have similar meaning.

Three Death Row Inmates Claim Mississippi Did Not Follow Administrative Procedures Act: The Associated Press reports that three death row inmates have filed documents with the Mississippi Supreme Court claiming the Mississippi Department of Corrections did not comply with the state's Administrative Procedure Act when it failed to properly publicize its switch to pentobarbital during executions. The 2003 law requires state agencies to notify the public of proposed changes to their rules and regulations so that the public has an opportunity to ask for hearings and officials opinions, as well as offer their own opinions to the proposed changes. A Hinds County judge dismissed a similar complaint last month, ruling that the MDOC's execution procedures are exempt from the Act.

DNA Links Two More Victims to the Original Night Stalker Serial Killer:Steve Chawkins and Nicole Santa Cruz of the Los Angeles Times report DNA testing has linked the 1981 murder of a Goleta couple to the Original Night Stalker, who is believed to be responsible for a decades-long crime spree that began with dozens of rapes in Northern California and ended with as many as 10 murders in Southern California. The identity of the Original Night Stalker is still unknown. The brother of one of his victims spent nearly $2 million to pass Proposition 69 in 2004, which mandates the DNA collection from those arrested or convicted in felony cases.

Alabama Close to Passing Immigration Bill: Bob Johnson of the Associated Press reports that after making some modifications, the Alabama Senate passed an immigration bill that already cleared the House. Sponsor Sen. Scott Beason (R) of Gardendale says that a committee will need to be set up to resolve the differences between the House and Senate versions of the bill. Both versions would require police officers to demand proof of citizenship from from anyone they stop for an infraction if they have reasonable suspicion the person is in the U.S. illegally. A person who cannot prove their legal status could be jailed, and if they are found to be in the country illegally, charged with trespassing. The bills also make it a crime to knowingly house, transport, rent to, or employ an illegal immigrant. The bills differ in their punishments, whether business should be held responsible for subcontractors who use illegal immigrants, and whether all businesses should be required to use the federal E-Verify program.

Department of Homeland Security Says Illinois Must Share Fingerprint Data for Deportations: Elise Foley of the Huffington Post reports that the Department of Homeland Security will not allow Illinois law enforcement to stop sharing fingerprint information with immigration enforcement. Illinois Governor Pat Quinn announced Wednesday his request to withdraw from Secure Communities, a program that shares fingerprints between the FBI and DHS to detect unauthorized immigrants. 42 states agreed to the program, and President Obama wants to expand the program nationwide by 2013. Quinn criticized the program for netting a large number of non-criminal undocumented immigrants, when the program is meant to capture the "worst of the worst" undocumented residents. DHS originally provided steps for local governments to opt out of the program, but has since redefined "opt out" to prevent local governments from refusing to share the information.

For the second time in as many years, the Ninth Circuit tossed the conviction of Johnathan Doody, accused of killing six priests, a nun, and two helpers at a Buddhist temple outside Phoenix in 1991. The victims' bodies were found face down in a circle, each shot in the head. Doody, 17 at the time, confessed after 12 hours of interrogation.

Last year on federal habeas review, the Ninth Circuit granted relief after determining the Arizona courts unreasonably found the Miranda warnings administered to Doody adequate and his confession voluntary. The U.S. Supreme Court vacated the Ninth's judgment and remanded the case in light of Florida v. Powell, 130 S.Ct. 1195 (2010), which reaffirmed that Miranda warnings need not be in any explicit form as long as they reasonably convey a suspect's rights.

The Ninth didn't budge in an en banc opinion by Judge Rawlinson, despite this term's consistent reminders to the court of the appropriate deference due under AEDPA:

Because the facts of this case differ so markedly from those in Powell, we continue in our view that the Miranda warnings provided to Doody did not clearly convey his rights to an attorney, and that the Arizona Court of Appeals unreasonably applied Miranda in ruling to the contrary.

* * *

The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

The dissenters (Judge Tallman, joined by Judges Rymer and Kleinfeld) appear to have gotten the memo:

The Supreme Court has repeatedly told us to adhere to the high deferential standard of review of state court judgments that the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d), requires in federal habeas cases. But my colleagues continue to treat this case as if it were on direct appeal to be reviewed de novo. The majority will not yield to the shot across our bow fired by the Supreme Court when it granted Arizona's petition for certiorari and vacated and remanded our original en banc decision for reconsideration in light of Florida v. Powell-a case that reaffirms the Court's precedent under which the Arizona Court of Appeals' decision reasonably fits. Subsequently, the Court fired a torpedo amidships in Harrington v. Richter. But the majority steams defiantly ahead, far from the rest of the fleet.

* * *

The majority's message to our state courts is clear: no matter how carefully you decide constitutional issues in criminal cases, no matter how well you justify your opinions with evidence of record, we will cast your work aside simply because we disagree.(internal citations omitted)

Assistant Arizona Attorney General Kent Cattani says his office intends to file a petition for cert. The AP has this story.

DNA Solves Cold-Case in 1984 Killing: San Francisco Chronicle staff writer Jaxon Van Derbeken reports a San Francisco jury convicted 62-year-old parolee Dwight Culton of first-degree murder on Wednesday in the 1984 killing of Joan Baldwin, whom prosecutors say was attacked while sleeping overnight at the auto-painting shop where she worked. Culton left a fingerprint and blood at the crime scene, which ultimately linked him in 2006 in a DNA cold-case hit. The guilty verdict came despite a glitch in the case involving a key witness, the crime scene technician who collected evidence at the time and was at the center of a scandal last year that caused hundreds of cases to be dismissed. In the end, the jury was much more concerned with the physical evidence that was discovered at the scene, which ultimately led to Culton's conviction. District Attorney George Gascon expressed satisfaction with the verdict, "This a very disturbing case, very unsettling. You had a murderer
walking free for years," he said. "This will bring some closure for the
family who has been waiting for justice since 1984."

17 Charged in Huge Methamphetamine Ring Operation: San Francisco Chronicle staff writer Henry K. Lee reports on a federal grand jury's decision to indict 17 people, including an alleged leader or local Nortenos gang, on charges that they were part of a huge methamphetamine ring operation in Contra Costa County. 16 men and one woman were charged Thursday in U.S. District Court in Oakland with methamphetamine dealing and conspiracy. As the result of a two-year multi-agency investigation, dubbed Operation Red Breach, authorities seized more than 135 pounds of methamphetamine worth $7.1 million on the street, as well as 26 guns, six bulletproof vests, and more than $86,500 in cash. Deputy director of law enforcement for state Attorney General Kamala Harris, Larry Wallace, said investigators "disrupted an extremely dangerous and ruthless network of individuals." If convicted, some of the defendants could face mandatory minimum sentences of five, 10, or 20 years.

Who Says Crackheads are Smart?: Police arrested 41-year-old Dexter White of North Charleston, South Carolina after he called 911 and told officers that he was shortchanged after buying crack cocaine from a drug dealer. According to a police report, White smoked the crack he purchased and then called 911. White was arrested for disorderly conduct and was locked up at the Charleston County Detention Center. Ray Rivera and Cameron Easley of Live5News of Charleston, South Carolina have this story.

Another DNA Match Solves Cold-Case: Texas police say 48-year-old Reynaldo Aguirre Rey of Madera, California is in California custody for murder in the 1989 death of a 93-year-old woman. Because of Rey's criminal history, DNA was able to make a match. Autopsy results of Minnie Elkins revealed she died from blunt-force trauma to the head and had been sexually assaulted. Ray will be arraigned in California before extradition proceedings begin. The AP has this story.

South Carolina Prisoner's Wish to Die Will Be Granted: Jeffrey Motts told investigators he was ready to die just a few hours after he strangled his cellmate at a state prison in Greenville County in South Carolina to settle a dispute. At 6pm on Friday, Motts will be granted his wish as he is scheduled to die by lethal injection for killing his cellmate, Charles "Chuck" Martin. Motts was serving a life sentence for killing his 73-year-old great-aunt and another 79-year-old man in 1995. Motts robbed the pair to fuel his addiction to crack cocaine. "I'm guilty of a horrible crime. I was found guilty, the jury thought I
deserved death, the judge agreed, and I also agree. I accept
responsibility for my actions and I'm ready to accept my punishment,"
Motts wrote in a September letter to Chief Justice Jean Toal of the
state's Supreme Court. Motts, who turns 36 today, will be South Carolina's first prisoner to be executed with its new combination of drugs using pentobarbital instead of sodium thiopental. This will be the first execution in South Carolina in nearly two years. AP writer Jeffrey Collins has this story.

The City Journal, an outstanding publication of the Manhattan Institute, now has a Golden State section of its website called City Journal California. (By the Manhattan Beach Institute? No, I made that up.)

The web site, at this point, appears to be mostly a collection of California-oriented articles from past issues of the City Journal. Crime related articles are under the Public Order tab.

"Marijuana Grannies" Caught With 800 Plants: Authorities say
Aleen Lam, 72, and Virginia Chan Pon, 65, of San Bruno, California, were
arrested last Friday after neighbors reported a burglary and responding
officers discovered nearly 800 marijuana plants growing throughout the
home. Police also found an electrical bypass that allowed the women to
steal the electricity needed to maintain their grow. Both Lam and Pon
pleaded not guilty and each are being held on $100,000 bail. The AP has
this story.Texas Executes First Inmate With Its New Three-Drug Cocktail:
On Tuesday, Texas executed a man convicted of raping and strangling a
woman in 2001. Cary Kerr, 46, was the state's first inmate to be put to
death using the new three-drug cocktail. Kerr's reaction to the
chemical was similar to past reactions of 466 inmates that were executed
in Texas since 1982 under the previous drug combination. Kerr was
pronounced dead nine minutes after the drugs were inserted into his
arms. The three-drug chemical cocktail in his lethal injection
consisted of the sedative pentobarbital instead of sodium thiopental, a
drug that is no longer available. Pentobarbital was used successfully
in executions in Oklahoma and Ohio and survived legal challenges in
those states. Kerr's attorneys did not challenge the drug switch.
Instead, a late appeal rejected by the US Supreme Court focused on a
claim that one of Kerr's previous lawyers had failed him during appeals
of his conviction and death sentence. Kerr is third Texas prisoner to
be executed this year. AP writer Michael Graczyk has this story.

Manufacturing Defect Might Let Drunk Drivers Walk Free: Authorities
revealed yesterday that a manufacturing defect in a breathalyzer used
by San Jose and Palo Alto police to arrest 865 people for drunk driving
could let some of the suspects off the hook. The Alco-Sensor V
breathalyzer might have shown incorrect readings because of a
manufacturer's error that can cause condensation to build in the tube.
Although the results of a field test breathalyzer are not generally used
as evidence in court, they are critical in some cases. The Santa Clara
County District Attorney's Office said it would undertake a month-long
review process to determine how many cases it would drop as a result of
the defect. Mike Rosenberg of the San Jose Mercury News has this story.

Texas Bill Could Allow Life Sentence for Fatal Dog Attacks: The AP reports
that under a bill authored by Texas Rep. Chuck Hopson (R), dog owners
could face life in prison if their dog kills a child under the age of 18
or an adult older than 65. The bill was approved by the house 123-7
and now moves to the Senate.

Dumb Criminals of the Day: WSYR-TV (NY) reports
an accidental pocket dial to 911 foiled the criminal plans of three
men, after the dispatcher was able to listen to the details of their
scheme through the open phone line and direct police to their location.
All three men were arrested and have been charged with possession of stolen property.

Are the textbooks kids are stuck with in school today good for anything at all? Yes, according to a 2010 article in the International Journal of Police Science & Management, noted in this week's NCJRS weekly accession list. Here is the abstract:

This study reports the results of an empirical investigation into the
ability of textbooks to form an effective ballistic shield that can be
incorporated into school safety plans. The authors examine the history
of assaultive violence with firearms in schools and the evolution of
school emergency plans. The most common calibers used in school
shootings were tested for their ability to penetrate hardback textbooks.
The results indicate that most common handgun bullets can be stopped by
only one or two textbooks and that even most assault rifle rounds can
be stopped by three to five books. Examples are also provided on how law
enforcement officers might incorporate the ballistic resistance of
textbooks concept into a school emergency plan.

Eric Holder's attitude toward using violence against terrorists seems to depend on whether he's the AG, or whether it's someone else. I can do no better than quote this post from Powerline:

In 2009, Eric Holder appointed a special prosecutor to look into criminal charges against CIA interrogators who, during the Bush administration, allegedly were [abusive] to terrorists. Holder piously explained that it was all about the rule of law:

"I fully realize that my decision to commence this preliminary review will be controversial," Holder added. "As attorney general, my duty is to examine the facts and to follow the law."

But that was then, and this is now. Holder testified before the Senate Judiciary Committee this morning, and was asked about the legal justification for killing Osama bin Laden. No problem, he explained:

The killing of al Qaeda leader Osama bin Laden by U.S. military forces was an act of national self-defense and he made no attempt to surrender, U.S. Attorney General Eric Holder said on Wednesday.

"It was justified as an act of national self-defense," Holder told the Senate Judiciary Committee, citing bin Laden's admission of being involved in the September 11, 2001 attacks in New York, Washington and Pennsylvania.

"If he had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that and therefore his killing was appropriate," he said.

Crime was a major issue in a national election victory by conservatives this week. Not in the United States, but next door.

The Conservative Party of Canada now has an outright legislative majority, no longer dependent on coalition partners. Steven Chase has this story for the Globe and Mail. A top legislative priority is "an omnibus crime bill containing a far-reaching rewrite of justice laws to fulfill their tough-on-crime agenda."

For the last two days I have been at a seminar on Three Strikes sponsored by the John Jay College Center on Media, Crime & Justice. It was a different mix of people than I usually hang out with. A few agreed with me. Many were of a different viewpoint but reasonable. And a few were so far out in left field as to make me wonder if we are really of the same species. I overheard a couple of these strange birds talking about polls showing a real possibility of a socialist prime minister for Canada. They were giddy at the prospect. Guess again, folks.

"A new Rasmussen Reports national telephone survey finds that 86% of American Adults approve of the president's decision authorizing the mission to kill bin Laden. Just five percent (5%) disapprove of the president's action, while nine percent (9%) are undecided."

Detainee Interrogations: Key to Killing Osama bin Laden: Cully Stimson has this post at The Heritage Foundation's blog about the critical role detainee interrogation played in locating Osama bin Laden.

FederalCourt Upholds Death Sentence: The Associated Press reports the 10th U.S. Circuit Court of Appeals upheld the death sentence of Michael Selsor for the shooting death of a convenience store clerk during a 1975 robbery in Tulsa. Selsor was convicted twice for the killing, in 1976 and 1998. After being sentenced to death in 1976, Selsor's sentence was modified to life in prison with the possibility of parole after Oklahoma's death penalty statue was declared unconstitutional. Then in 1996, the appellate court threw out Selsor's murder conviction as well as two other related convictions after ruling that the convictions were invalid because two public defenders were required to represent Selsor and his co-defendant at a joint trial. Selsor was convicted of first-degree murder and sentenced to death after a retrial in 1998.

Iowa Deadlocked on Bill That Addresses Parole for Juveniles: William Petroski of the Des Moines Register reports that the Iowa Senate and House can't agree on how to address a Supreme Court decision from last year holding that juveniles sentenced to life in prison for crimes other than murder must be given a "meaningful opportunity to obtain release." Iowa lawmakers can't agree on how long affected inmates should stay in prison before before they are eligible for review by the Iowa Board of Parole. If no action is taken, affected cases will be reviewed annually. Cheryl Dittmer, whose daughter was killed by gang members in 1993, sat in the Senate balcony on Monday. Six teenagers were convicted in connection with the death of her daughter, two of which were given life sentences for first-degree kidnapping and could be freed someday as a result of the Supreme Court ruling. Dittmer said that if the two inmates are granted annual parole reviews, she could be revictimized once a year. In a written statement to lawmakers, Dittmer said "I implore you as a mother to please act." Dittmer also wants lawmakers to pass legislation which would make juveniles convicted of Class A and some Class B felonies ineligible for parole.

California Won't Resume Executions This Year: Carol J. Williams of the Los Angeles Times reports that any attempts to resume executions by California corrections officials have been put off at least until next year, according to court documents. The California Department of Corrections and Rehabilitation requested to delay the review of newly revised lethal-injection protocols until at least January. This request follows the decision of San Quentin warden Michael Martel to replace and assemble a new execution team and Governor Jerry Brown's decision last week to abandon plans for building a new death row facility at San Quentin State Prison. These steps have many speculating about the future of new executions being sought. There are currently 713 condemned inmates on California's death row.

Murderer Attacks DA After Guilty Sentence: Nolan Clay of NewsOK reports that Emanuel D. Mitchell attacked Oklahoma County District Attorney David Prater shortly after the prosecutor's penalty phase closing argument. Prater was punched in the face and the two men fell through the swinging gate into the spectator's section. Jurors found Mitchell guilty of first-degree murder in the death of a 16-year-old accomplice during the robbery of an Oklahoma City pharmacy. Though jurors witnessed the assault filmed by security cameras, deliberations were allowed to continue.ACLU Files Suit Against Utah's Immigration Law: Billy Hesterman of the Daily Herald (UT) reports that the ACLU of Utah has filed a class action lawsuit against Utah's recently passed House Bill 497, which allows law enforcement officials to verify immigration status for people detained for class B or C misdemeanors and requires officials to verify immigration status for people arrested for a class A misdemeanor or a felony. Utah Governor Gary Herbert signed the bill along with multiple other immigration bills, set to go into effect May 10.

Feinstein Pushes for Ban on Prison Cell Phones: Jack Dolan of the Los Angeles Times reports U.S. Senator Diane Feinstein is lobbying for the revival of a bill that would make it illegal to smuggle cell phones into California prisons. Currently it is a violation for prisoners to possess cell phones, but not a crime. The bill at the state level would resemble the bill Feinstein sponsored that made possession of a cell phone by an inmate in a federal prison punishable by up to an additional year and a $5,000 fine. The bill was put on hold by legislators who feared it would cost too much to enforce. Feinstein is now calling for the resurrection of the bill, saying that prison gangs are able to operate while incarcerated, directing drug deals and killings, through the use of cell phones. Nearly 11,000 smuggled cell phones were discovered in California prisons last year.

Sentencing Law and Policy has its share of bomb throwers, head cases and ad hominem attacks, but every now and again, a high quality debate breaks out. One has broken out now about Osama and the death penalty. Readers interested in the subject might find it worthwhile to follow at this site, and/or add their own thoughts.

UPDATE: It was a high quality debate for a while. The posts by "guest" are still very much worthwhile. But other than that....

The Supreme Court today in Bobby v. Mitts reversed the Sixth Circuit and rejected an Ohio death row inmate's challenge to "virtually the same" penalty phase jury instructions considered and upheld last term in Smith v. Spisak, 558 U.S. __ (2010).

Referring to the instructions as "acquittal-first," the Court of Appeals stated that they impermissibly required the jury to first decide whether to "acquit" Mitts of the death penalty before considering "mercy and some form of life imprisonment." . . . The Court of Appeals concluded that [these instructions] unconstitutionally "deprived the jury of a meaningful opportunity to consider" a life sentence [in violation of Beck v. Alabama, 447 U.S. 625 (1980)].

The Supreme Court, in a per curiam decision, disagreed.

The instructions here are surely not invalid under our decision in Beck. The concern addressed in Beck was "the risk of an unwarranted conviction" created when the jury is forced to choose between finding the defendant guilty of a capital offense and declaring him innocent of any wrongdoing.

The question here, however, concerns the penalty phase, not the guilt phase, and we have already concluded that the logic of Beck is not directly applicable to penalty phase proceedings.

* * *

We all but decided the question presented here in Spisak itself. . . The same conclusion applies here.

Question: How did we get the intelligence that made possible the raid that killed Osama?

Fake answer: By whimpering, "Why do they hate us?"

Real answer: By extracting information that, left to their own devices, captured al Qaeda operatives would never have divulged. Fortunately, under President Bush, they were not left to their own devices.

More information is coming out about how American intelligence identified and tracked down the al Qaeda courier who led to Osama bin Laden. It appears that the CIA's interrogations of Khalid Sheikh Mohammed and Abu Faraj al-Libi provided the information that began the chain the culminated in bin Laden's death yesterday:

Officials say CIA interrogators in secret overseas prisons developed the first strands of information that ultimately led to the killing of Osama bin Laden.

Current and former U.S. officials say that Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, provided the nom de guerre of one of bin Laden's most trusted aides. The CIA got similar information from Mohammed's successor, Abu Faraj al-Libi. Both were subjected to harsh interrogation tactics inside CIA prisons in Poland and Romania.

KSM and Libi are two of the three al Qaeda leaders who were waterboarded. Published accounts indicate that waterboarding was key to getting valuable information from them. Our intelligence on al Qaeda and other terrorists groups is of course much better than it was in 2001, but it is still possible that in the future we may capture a terrorist who has information that we have an imminent need to extract. Should that happen, it is unfortunate that waterboarding and other enhanced interrogation techniques, which can best be viewed as humane alternatives to torture, have been taken off the table.

Liberals today are cheering (some of them) and pretending to cheer (others of them) the killing of Osama bin Laden. That's because they know that, only slightly below the surface, is the question they've been dreading: If he'd been captured instead of killed, would we be right to execute him?

Abolitionism has to answer, "no." That is, after all, what abolitionism means. The problem is that not only is that answer incorrect, it is so wildly incorrect that they can't say it out loud. And they don't. You will search in vain for any liberal commentary today about whether a live capture should properly have been the precursor to putting Osama in the death chamber.

There is much to say on this subject, but for now I only want to quote what I thought was an insightful paragraph by Andrew Klavan in the City Journal (the city being New York):

Justice is a moral necessity of the human heart. We cannot live without it....This is a harsh truth because justice is a harsh good. It is not gentle like mercy. It is not stagnant like equality. It is not a soft, shapeless word to be slapped on bumper stickers or chanted during rallies in order to inflame one's own sense of virtue. Justice is an exact description of a specific social interaction: the awarding to men and women of the outcome they deserve. This does not exist in nature, not in this life. It's something we do, something we give and often, too often, when evil has been committed, it has to be delivered at the end of a gun. There is sometimes simply no other way.

1st Texas Execution with New Drug Set for Tuesday: Michael Graczyk of the AP reports Cary Kerr is scheduled to be the first Texas inmate executed with pentobarbital. Another Texas inmate had been scheduled to die last month using the new drug, but the U.S. Supreme Court delayed the execution. Kerr was sentenced to death for the murder of 43-year-old Pamela Horton, whom a jury concluded he raped, beat, and strangled to death before dumping her body on a street north of Fort Worth.

Former Judge Urges Death Penalty Repeal: CBS San Francisco has this story on a challenge to California's death penalty from an unlikely source - retired Judge Donald McCartin, aka "The Hanging Judge of Orange County," who sent nine men to death row between 1978 and 1993. Angry that he will likely die before any of these death row inmates are executed, McCartin last month urged Governor Jerry Brown to repeal the death penalty, arguing that the state has spent "millions of tax dollars in this meaningless and ultimately fruitless pursuit of death." Criminal Justice Legal Foundation president Michael Rushford counters in the article that much of these costs are a result of unnecessary delays caused by anti-death penalty advocates and that a more efficient system focusing "on guilt and not on procedural issues and not on technicalities" is possible.

Original Texas Prison Gang Remains Deadly Force: Dane Schiller of the Houston Chronicle has this article on the continued strength of Texas's original prison gang, the Texas Syndicate. With thousands of members behind bars and even more on the street, the gang works as a subcontractor for the Mexican drug cartel and is reportedly responsible for at least 50 murders and countless other violent crimes over the past ten years. The Texas Syndicate was the first prison gang in the state to adopt the Italian mobster traditions of strict rules and discipline, and firmly adheres to its main rule that once a member joins, the gang is more important than family, God, or anything else. "When Moses came down from Mount Sinai, he had only Ten Commandments. These folks have 22. Violate any of them and you're subject to death," said federal prosecutor Robert Wells Jr.

The founder and spiritual figurehead for al Qaeda, Osama bin Laden, is dead.

Several officials confirmed the report to CBS News, and say that his body is currently in U.S. hands.

CBS News correspondent David Martin reports that bin Laden was killed by forces in Afghanistan.

The long-lost terrorist mastermind had eluded an aggressive hunt by U.S. authorities for nearly ten years since the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on Sept. 11, 2001.

Former State Department spokesman P.J. Crowley said on Twitter: "#BinLaden's death does not eliminate the threat from #alQaeda, but it is hard to see anyone playing the same organizational role he did."

Congratulations to President Obama for giving bin Laden all the due process he deserved.

It is now the evening of Law Day, Pacific Time, a day on which the ABA chose to showcase the importance of lawyers representing unpopular causes. Yet as of today we have not heard a peep from the ABA condemning the boycott of King & Spalding for defending the Defense of Marriage Act or the abrupt dropping of representation by that firm in response. See my prior posts here and here and Bill's here. I returned to their site today and could find nothing.

The importance of this, and the reason I bring it up on blog that is about criminal law and takes no position on DOMA, is what it says about the ABA. The ABA's pronouncements on the duties of lawyers are sometimes treated by courts as if they were law. The Supreme Court fell into this trap in Wiggins v. Smith and Rompilla v. Beard, but it backed off somewhat in Bobby v. Van Hook.

So let's do a little thought experiment. Suppose a victims' rights group called for a boycott of the blue chip firms that take on representation of murderers, some big companies responded, and some of the firms announced they were dropping the cases. How fast and how furious would the ABA's response be? They would immediately and vigorously (and correctly) denounce the action, saying that no matter how repugnant the clients and their crimes may be, the duty of lawyers to represent even the most unpopular of causes must prevail.

So why do we hear nothing today? First, the organization that called for the boycott is a Politically Correct sacred cow. Second, and most importantly, at the ABA Political Correctness trumps principle. Today's deafening silence confirms this.

That is the most important point to keep in mind whenever the ABA says anything about the death penalty. Nothing is more politically correct than obstructing the operation of the death penalty with the ultimate goal of bringing it down. The ABA's claim to take no position on the death penalty itself is hogwash. They are full-bore opposed, and their claims of what is required of defense counsel are made for the purposes of (1) overturning as many judgments for supposedly ineffective assistance as they possibly can, (2) convincing the people that they cannot afford justice.

The Supreme Court in Van Hook has taken the first step toward disestablishing the ABA Standards as having any official standing. Let us hope that they continue in this direction, toward the end that those standards will be recognized as the statement of an advocate for one side, entitled to little or no weight.